Case 1:07-cv-00241-ML -LDA Document 12 Filed 09/07/07 Page 1 of 86 PageID #: 143

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

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 A. 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.

)

Class Action Civil Action No. 1:07-cv-00241-L-LDA

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
AND REQUEST FOR CLASS ACTION

* pseudonyms are used for all minor named plaintiffs.

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TABLE OF CONTENTS Page No.
I. Introduction..........................................................................................................................4 II. Jurisdiction and Venue.........................................................................................................7 III. Class Action Allegations......................................................................................................7 IV. The Parties .........................................................................................................................10
A. The Named Plaintiffs .............................................................................................10 B. The Defendants ......................................................................................................35 V. The Rhode Island Child Welfare System...........................................................................36 VI. Defendants Have Long Known That Rhode Island’s Child Welfare System Cannot Fulfill Its Duties to Plaintiff Children Without Urgent, Systemic Reform ...........38 A. The 2003 System of Care Task Force Report Concluded that the Child
Welfare System Was Harming Children and That Systemic Reform Was Necessary ...............................................................................................................38 B. The 2004 Federal Child Welfare Review Identified Widespread Problems in Rhode Island’s Child Welfare System...............................................................40 C. The 2005 T.J. Wright Child Fatality Report Called for Systemic Reform ............42 D. The Child Advocate’s 2006 Report Found Little Progress Had Been Made.........43 E. A 2006 Federal Regional Review Revealed Little to No Progress in Improving the Child Welfare System ....................................................................43 F. The Rhode Island Senate Has Recognized the Child Welfare System’s Chronic Failings.....................................................................................................44 VII. Current Systemic Child Welfare Failings and the Resulting Harm to Children................45 A. Plaintiff Children Are Abused and Neglected in Foster Care................................45 B. Defendants Place Plaintiff Children in Homes and Institutions that Do Not Meet Their Needs and That Do Not Comply With Reasonable Professional Standards................................................................................................................47
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1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements ...............................................................47
2. Defendants Unnecessarily Place Children in Shelters and Institutions, Where They Stay for Too Long .............................................48
3. Defendants Send Children in Foster Care Far from Their Homes and Communities .......................................................................................50
4. Because Children Are Placed in Inappropriate Homes and Institutions, Their Placements Frequently Disrupt, and Children Deteriorate as They Get Moved from Place to Place.................................51
5. Defendants Separate Siblings in Foster Care Because They Have Failed to Develop an Adequate Placement Array......................................54
C. Defendants Fail in Their Duty to Meet Plaintiff Children’s Service Needs ..........55
1. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Assessments or Case Plans.................................55
2. Defendants Violate Plaintiff Children’s Rights to Timely and Safe Reunification with Their Families When Reunification Is Appropriate ................................................................................................56
3. Defendants Violate Plaintiff Children’s Rights to Permanency by Pursuing Reunification with Parents When Not Appropriate....................58
4. Defendants Fail to Timely Place Children Who Cannot Return Home with Permanent Adoptive Families, Allowing Them Instead to Languish in Foster Care.........................................................................59
5. Defendants Violate Plaintiff Children’s Health Care Rights.....................62
D. Defendants’ Mismanagement of Rhode Island’s Foster Care System Harms Plaintiff Children........................................................................................65
1. Defendants Assign Excessive Caseloads to Caseworkers, Making It Impossible for the Caseworkers to Ensure That Children Are Safe and Having Their Needs Met.............................................................65
2. Caseworkers Fail to Make Required Child Visits......................................68
3. The DCYF Licensing Unit Fails Applicable Standards, Resulting in a Chronic Shortage of Licensed Placements and Providers ..................69
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Case 1:07-cv-00241-ML -LDA Document 12 Filed 09/07/07 Page 4 of 86 PageID #: 146 E. Defendants’ Fiscal Mismanagement of the Child Welfare System Harms Children..................................................................................................................72 1. Defendants Forfeit Available Federal Funds .............................................72 2. Defendants Waste Limited Funds on Harmful, Costly Institutional Placements .................................................................................................73 3. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents ........................................................................74
VIII. Causes of Action ................................................................................................................75 IX. Prayer for Relief.................................................................................................................82
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I. Introduction 1. On October 31, 2004, a three-year-old Rhode Island boy named T.J. Wright
was beaten to death by his foster parents. The State of Rhode Island’s Department of Children, Youth and Families (DCYF), the agency responsible for protecting abused and neglected Rhode Island Children, had removed T.J. from his parents’ care and placed him with the foster parents who killed him: a twenty-year-old maternal aunt and her live-in boyfriend who already had two young children. DCYF placed T.J. and his two brothers with these young parents without screening or licensing them. There were now five children living in the home, all under the age of nine. Both foster parents had histories of drug abuse and involvement in drug trafficking. Both were unemployed.
2. T.J. Wright’s death was all the more tragic because DCYF could easily have prevented it by taking simple steps, mandated under DCYF’s own policies, to ensure T.J.’s safety before placing him in their care, such as screening the prospective foster parents for criminal and DCYF histories and checking their references. DCYF had a duty to protect T.J. Wright. Instead, it placed him with the people who killed him.
3. The T.J. Wright homicide put DCYF in the spotlight, revealing serious systemic failures. An official investigation into his death produced a series of urgent recommendations for long-overdue reform. Nevertheless, now nearly three years since T.J.’s death, DCYF is still unable to provide basic safety for the abused and neglected children whom it removes from home and takes into its legal custody for their own protection.
4. This civil rights class action is brought on behalf of those vulnerable children. Plaintiffs seek declaratory and injunctive relief to remedy Defendants’ violations of
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their legal rights and to prevent Defendants, by their actions and inactions, from continuing to
harm the abused and neglected children who rely on Defendants for care and protection.
5. DCYF is plagued by fundamental, systemic failings of great depth and
scope. For example:
• DCYF fails to protect children from abuse and neglect in foster care:
o In five of the six years from 2000 through 2005, Rhode Island was the worst state in the nation in its rate of maltreatment or neglect occurring to children in State foster care.1
o For years, children under the protection of the state in foster care custody in Rhode Island have suffered abuse or neglect at a higher rate than have children living in the state’s general population.
• DCYF fails to assess and address children’s needs and fails to place them with families where their needs will be met and where they will be safe: In all aspects of case planning and management, DCYF fails to exercise reasonable professional judgment. DCYF fails to identify children’s safety, medical, mental health, education and permanency needs and fails to develop and implement plans to ensure that children and families receive necessary services to meet those needs. DCYF does not develop case plans or choose placements for children on the basis of their individual situation. DCYF regularly places children in settings that are ill-suited to their individual needs. As a result, these placements predictably disrupt, and DCYF shuffles children unnecessarily from one placement to another. With each successive inappropriate placement, children become increasingly damaged.
• DCYF returns children to their parents without making a reasoned determination that the children will be safe and without identifying or providing services needed to ensure the children’s safety: More than 15 percent of the children entering Rhode Island foster care in the first quarter of 2006 had been in foster care less than a year earlier. This means that these children had been returned by the State to their parents, only to be abused or neglected again and returned to State foster care.
• DCYF fails to engage in the planning necessary for children in its care to achieve permanency, causing many children to languish in foster care for years: DCYF fails to timely plan for adoption when children cannot be safely returned home. DCYF frequently places children in institutions and with families that will not adopt. For children who cannot be reunified with their
1 Data on 2006 are not yet available.
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families, this effectively keeps children languishing in care with no move towards finding a permanent home.
• DCYF fails to maintain an adequate number of foster homes, instead placing and leaving children in institutions simply because nothing else is available: Federal law and reasonable professional standards require that children in foster care be placed in the least restrictive, most family-like setting suited to their needs. In Rhode Island, however, 35 percent to 40 percent of the children in State foster care custody live in expensive emergency shelters, group homes, and other institutions, many simply because Rhode Island has not developed more appropriate and less harmful placements for them. The rate at which Rhode Island institutionalizes children in its foster care custody is twice the national average of 19 percent. In the most recent year for which data are available, 2004, Defendants placed 18.9 percent of children in foster care under 12 years old in group homes and institutions; this is more than twice the national median of 8.3 percent in 2003, the last period for which data are available. Such placements are harmful, especially to young children, except in very rare cases.
• DCYF assigns excessive caseloads to its caseworkers, making it impossible for them to visit the children in DCYF’s custody: DCYF caseworkers labor under caseloads that far exceed reasonable professional standards. As a result, caseworkers make only a fraction of required visits with the children assigned to them. As of June 2007, only 39 percent of all Plaintiff Children had received a face-to-face visit with their caseworker within the last 30 days. Without caseworkers visiting children on a regular basis, it is impossible for DCYF to ensure that children in foster care are safe and are having their basic needs met.
• DCYF places children in unlicensed homes: As of May 2007, there were 233 children in DCYF’s legal custody who were living in unlicensed foster homes. DCYF did not take reasonably necessary steps to ensure that these homes were safe and appropriate placements before leaving children in them.
6. These harms to children are the direct result of a child welfare system that
has long been poorly managed, that misdirects funds, and that has failed to develop necessary
and appropriate placements and services for children.
7. This civil rights class action seeks declaratory and injunctive relief to
compel Defendants—the Governor of the State of Rhode Island, the Secretary of the Executive
Office of Health and Human Services, and the Director of the Department of Children, Youth
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and Families—to meet their legal obligations to care for and protect Rhode Island’s abused and neglected children in state custody by reforming the State’s dysfunctional child welfare system. II. Jurisdiction and Venue
8. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution, federal statutes, and federal common law. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
9. Venue is proper here pursuant to 28 U.S.C. § 1391(b). The claims arise in this district. III. Class Action Allegations
10. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
11. The class is defined as “all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect” (“Plaintiff Children”). As of January 2007, approximately 3,000 children were in the legal custody of DCYF for foster care services due to reported or substantiated allegations of abuse or neglect. The Class is sufficiently numerous to make individual joinder impracticable.
12. The questions of law and fact raised by the Named Plaintiffs’ claims are common to and typical of those of the Plaintiff Children they seek to represent. Named Plaintiffs are all children in Defendants’ legal custody who rely on Defendants for their safety and wellbeing. They are at risk of harm by the systemic and legal deficiencies of Rhode Island’s child welfare system.
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13. Questions of fact common to the Class include:
a. Whether Defendants fail to provide Plaintiff Children with safe, appropriate, and stable foster care placements, causing significant harm to their health and well-being;
b. Whether Defendants fail to prevent the abuse or neglect of Plaintiff Children while in Defendants’ custody, causing significant harm to their health and well-being;
c. Whether Defendants fail to place Plaintiff Children in the least restrictive and most family-like settings suited to their needs, including by unnecessarily institutionalizing them, causing significant harm to their health and well-being;
d. Whether Defendants fail to provide Plaintiff Children with legally required services necessary to keep them safe and properly cared for, and to prevent them from deteriorating physically, psychologically, or otherwise while in custody, as required by law and reasonable professional judgment, causing significant harm to their health and well-being;
e. Whether Defendants unsafely return Plaintiff Children to caretakers who abuse or neglect them again, causing significant harm to their health and well-being;
f. Whether Defendants unnecessarily move Plaintiff Children from placement to placement, causing significant harm to their health and well-being;
g. Whether Defendants fail to provide Plaintiff Children and their families with reasonable decision-making as well as timely services necessary to ensure the safe and successful reunification of children with their families when appropriate, causing significant harm to their health and well-being;
h. Whether Defendants fail to provide Plaintiff Children with timely and reasonable decision-making as well as services necessary to ensure that when Plaintiff Children cannot be reunited with their families safely, they are promptly freed for adoption and placed in permanent homes, causing significant harm to their health and well-being; and
i. Whether Defendants fail to provide Plaintiff Children with the supports necessary to maintain family relationships where appropriate, including placing siblings together as well as
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providing parent and sibling visits, causing significant harm to their health and well-being.
14. Questions of law common to the Class include:
a. Whether Defendants’ actions and inactions violate Plaintiff Children’s substantive due process rights to be free from harm while in state custody, guaranteed by the Fourteenth Amendment to the United States Constitution;
b. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to family integrity, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution;
c. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to mandated foster care and adoption services, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations;
d. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to adequate foster care maintenance payments, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations;
e. Whether Defendants’ actions and inactions violate Plaintiff Children’s third-party beneficiary rights under the Title IV-E plan executed between Rhode Island and the federal government; and
f. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to procedural due process, guaranteed by the Fourteenth Amendment to the United States Constitution.
15. Named Plaintiffs will fairly and adequately protect the interests of the class
they seek to represent.
16. Named Plaintiffs and Plaintiff Children are represented by:
a. Jametta O. Alston, the Child Advocate of the State of Rhode Island, a public official empowered to bring legal action to protect abused and neglected children in DCYF’s care, acting in her official and individual capacities;
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b. John Dineen, a licensed Rhode Island attorney with substantial experience litigating civil rights matters in the federal courts;
c. Attorneys employed by Children’s Rights, a nonprofit legal organization whose attorneys have substantial experience and expertise in child welfare class actions nationally; and
d. Weil, Gotshal & Manges LLP, a global private law firm with extensive experience in complex civil litigation including class action litigation and a non-litigation office in Providence.
17. The attorneys and entities listed above have investigated all claims in this action and have committed sufficient resources to represent the Class.
18. Each Named Plaintiff appears by a next friend, and each next friend is sufficiently familiar with the facts of the child’s (or children’s) situation to fairly and adequately represent the child’s (or children’s) interests in this litigation.
19. Defendants have acted or failed to act on grounds generally applicable to the Class, necessitating declaratory and injunctive relief for the Class. Plaintiffs’ counsel know of no conflicts between or among members of the Class. IV. The Parties
A. The Named Plaintiffs SAM AND TONY M.
20. SAM and TONY M., ages 12 and 9, respectively, are siblings currently in DCYF custody. Over the past eight years, DCYF has repeatedly failed in its most basic obligation to keep these children safe. Instead, these boys have been subject to physical and sexual abuse, moved at least ten times each to unstable and inappropriate placements, returned several times to abusive parents who further maltreated them, and denied critically needed medical evaluations and mental health services. Although DCYF has been involved in Sam’s
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life since he was four, and in Tony’s since he was an infant, it has yet to take the steps necessary to help these children achieve permanency.
21. Sam and Tony first entered foster care in May 1999, when Sam was four years old and Tony an infant. DCYF was aware when it removed them from their parents’ home that their father had a domestic assault record and that their mother had significant substance abuse and mental health issues. Her second suicide attempt prompted the children’s removal. DCYF initially placed Sam and Tony in a home with a family friend. While in this home, one of the boys was found with cigarette burns on his body.
22. In June 1999, Sam revealed that his father had sexually abused him, which was relayed to his DCYF caseworker. DCYF failed to arrange for Sam to undergo a sexual abuse evaluation, even though health professionals working with Sam recommended such an evaluation in June, August, September, and again in October. In October, his father, the alleged perpetrator, rescinded his consent for the evaluation.
23. In January 2000, DCYF still had not fully investigated Sam’s allegation of sexual abuse by his father, and there was no indication that the parents had undertaken all that was required of them by DCYF to safely regain custody of their children. DCYF nonetheless returned Sam and Tony to their parents without taking adequate steps to ensure that the boys would be safe. The very next month, DCYF received a report that the boys were again being abused and that one had a quarter-sized mark on his neck and one had a bruise around his eye. Their father was reported to be abusing alcohol. Sam had witnessed his father abuse his mother. At one point, Sam’s father threatened to kill Sam and his mother. DCYF conducted two investigations in the home, one in July 2000 and one in March 2001, but left the children at home.
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24. The boys remained with their mother for the next two years, until February 2003. During that time their father left the family, and their mother remarried. In July 2002, when Tony was four and Sam seven, their stepfather brutally sexually and physically abused Tony. At the time, their stepfather was on “home confinement” for assaulting Tony’s mother, for which he had been criminally charged twice.
25. After Tony’s sexual abuse by his stepfather, he was taken to a sexual trauma and resource center, but DCYF failed to ensure that a sexual abuse evaluation was performed. Sam and Tony then moved with their mother to the home of their maternal grandparents, which was already overcrowded with other family members and their children.
26. In January 2003, DCYF investigated a report that the boys’ grandfather had hit one of them with a cane. The next month, the boys’ mother was in a car accident while driving under the influence of narcotics with eight-year-old Sam in the car with her. Following this incident, DCYF again removed Sam and Tony and placed them in a foster home. The foster parent requested a sexual abuse evaluation for one of the boys because he began to act out sexually, but the evaluation was not scheduled to occur until six months later. This foster placement became unstable, and DCYF moved the boys to a third foster home.
27. In October 2003, DCYF again reunified Sam and Tony with their mother. By this time, DCYF had investigated and confirmed approximately eight reports that the children were being harmed in her care; in six other reports, DCYF issued “early warning” reports. In January 2003 alone, DCYF investigated and confirmed three reports that Sam and Tony were being maltreated.
28. In May 2004, within six months of DCYF returning the boys to their mother, DCYF removed them again because of substance abuse and domestic violence problems.
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DCYF again assigned the boys a permanency goal of reunification with their mother. This remained the goal even after DCYF caseworkers found that their mother could not manage the boys even during supervised visits. This time, DCYF failed to place the boys in a family setting and instead placed them in a group care facility.
29. Both Sam and Tony were moved to a residential treatment facility in November 2005. Only one month later, when Tony was 7 years old and Sam was almost 11, the boys were each hospitalized in separate out-of-state psychiatric hospitals. This was the eighth placement to which DCYF had subjected these children. Although this was the first time Sam and Tony had ever lived apart from each other, DCYF failed to arrange for the boys to visit one another for four months. DCYF allowed both boys to languish apart from one another in these highly restrictive hospitals well past the time it was therapeutically appropriate, simply because DCYF had no other placement for them. The boys experienced even further trauma while still separated when their teenaged first cousin died while institutionalized in DCYF foster care custody.
30. In October 2006, while living in another residential treatment center, Tony’s two roommates tried to involve him in sexual activity. Staff at the facility, which was licensed and supervised by DCYF, were aware of the incident but failed to protect Tony by separating him from his roommates, apparently because the center did not have any available rooms. Four months later, in January 2007, Tony was sexually molested by another roommate. Because the facility still had no open beds in which to move either Tony or his roommate perpetrator, the only measure it took to protect Tony from further abuse was for a staff member to sleep in the room next to Tony. Neither the facility nor DCYF reported either incident for investigation.
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31. Sam and Tony remain separated and institutionalized. Tony, only nine years old, is currently living in his twelfth placement. He has not lived in a home since 2004. Sam is in his tenth placement. There is no indication that DCYF is working towards finding a family placement for either Sam or Tony, and, while their father’s rights were finally terminated in February 2006, their mother’s rights have not yet been. DCYF has not taken any steps to find permanent families for these boys.
32. As a result of Defendants’ actions and inactions, Sam and Tony have been and continue to be irreparably harmed. DCYF has repeatedly returned these children to an abusive home environment without taking any of the measures necessary to protect the children from further maltreatment in that home. Rather than meet its obligation to provide the brothers with a stable family environment, DCYF has cycled these boys through a number of overly restrictive institutions where Tony suffered further abuse that could have been prevented if the facility had acted with reasonable professional judgment. Defendants have taken virtually no steps to move these children out of foster care and into a safe and stable family that they can call their own. The ongoing failure by DCYF to provide these children with any stability or prospect of a permanent home has caused and continues to cause them serious psychological harm.
33. Defendants have violated Sam’s and Tony’s constitutional and statutory rights by failing to protect them from harm; by failing to provide them with medical and mental health evaluations and services necessary to prevent their health from deteriorating while in DCYF custody; by failing to provide them with appropriate, least-restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
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34. Named Plaintiffs SAM and TONY M. appear through their Next Friend, Gregory C. Elliott. Professor Elliott is Associate Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 24 years. Professor Elliott is a social psychologist, specializing in the social development of the individual. In his work he has dealt with issues of child maltreatment, and he is currently writing a book on how adolescents come to believe that their lives matter to others
CAESAR S. 35. CAESAR S., only six years old, has been moved through eight DCYF placements, many unlicensed and inappropriate, and has been lingering in DCYF custody for virtually his entire life. He was removed from home due to his mother’s neglect in December 2002, when he was 15 months old. Despite his parents’ substance abuse, failure to comply with treatment requirements, and clear inability to parent Caesar, he was not freed for adoption until June 2007. DCYF has cycled Caesar from inappropriate placement to inappropriate placement without looking for a safe, loving, permanent home for him, and has allowed him to deteriorate in foster care. For the last two years, Caesar has lived in an inappropriate home where he cannot live permanently. 36. Caesar’s family has had a long history with DCYF. His mother, Rhonda [all names are pseudonyms], and her mother, Caesar’s grandmother, were both known to DCYF when they were children. Even before Caesar was born, DCYF was providing services to Rhonda’s family and making regular visits to their home. When Rhonda gave birth to Caesar at age 15, DCYF already knew that she had displayed signs of depression, anxiety, anger, and stress and had engaged in such harmful behaviors as substance abuse and shoplifting.
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37. Since 1981, there have been 61 DCYF investigations into Caesar’s maternal grandmother’s home, 19 of which concluded that abuse or neglect had occurred. Despite this, even after DCYF filed a neglect petition against Caesar’s grandmother on behalf of Rhonda and her two siblings in March 2002, and after Caesar’s mother Rhonda herself admitted neglecting Caesar in September 2002, DCYF placed Caesar with Rhonda in this maternal grandmother’s home, where Caesar and his mother lived until December 2002. There was no crib in this home as of July 2002.
38. In December 2002, DCYF removed 16-month-old Caesar from Rhonda’s care after he was found sitting on top of a kitchen table with no adult in the room. Rhonda and Caesar had moved from his grandmother’s home to a rooming house occupied by Rhonda’s two sisters, a boyfriend who had previously committed physical abuse, and another adult with a history of sex offenses against children. Rhonda explained that she and Caesar had left Caesar’s grandmother’s house—which she described as a crack house—because a pedophile was living there. Rhonda was reported to leave the rooming house at night and leave Caesar unattended, and she admitted to using marijuana and alcohol.
39. After this removal, DCYF initially placed Caesar in an emergency shelter, where he remained for two days, and then moved him to a foster home where he remained for one month. In January 2003, DCYF placed Caesar with his paternal aunt Laura and her two young children. DCYF subsequently received reports that Laura was smoking marijuana and leaving the children with her sister, a known substance abuser. Nonetheless, Caesar stayed in this home for a year and a half, even while Laura advised DCYF repeatedly that she was having difficulty taking care of him. DCYF did nothing to support this placement or help this aunt; it simply arranged two weekend respite placements. Predictably, Caesar was eventually removed
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because Laura was overburdened and unable to care for him. During this period Caesar was also having supervised biweekly visits with his father.
40. In September 2004, DCYF placed Caesar with his great-aunt, even though a son living in the home had a criminal drug record. Caesar was kept in the house for nine days, and DCYF removed him only after confirmation that that the great-aunt and her son were selling marijuana.
41. DCYF then placed Caesar in yet another foster home, where he spent about a month. Caesar was also forced to change daycare when he moved to this home. While in this foster home, Caesar’s foster parent asked Caesar to sit by her. Caesar asked her whether she was going to beat him.
42. In October 2004, DCYF moved Caesar back to his aunt Laura, despite having previously removed him from her care and knowing that she was unsuitable and unable to care for him. When Caesar was told he was being sent back there, he told his caseworker that Laura and her children punched and hit him. Nonetheless, DCYF placed him in this home. While there throughout 2005, Caesar began to exhibit serious behavioral problems, which DCYF should have addressed and which should have alerted DCYF that Caesar was having trouble in the home. DCYF left Caesar in this home for eleven months.
43. In September 2005, this inappropriate placement predictably ran into trouble. Caesar had bruises and marks on his arms where he had clearly been hit with a belt, and Caesar reported that his penis hurt and that his cousin had touched him there. A physician confirmed that a belt caused the bruises and that excessive force had been used. The DCYF caseworker reported that a preponderance of the evidence confirmed the allegations against
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Laura, but then declared the investigation to be unfounded. DCYF did not order an evaluation or counseling for Caesar’s possible sexual abuse.
44. Caesar has lived in the unlicensed and inappropriate home of his paternal grandmother since September 2005. DCYF placed Caesar in his grandmother’s home despite serious warning signs—in 2004 DCYF had found the home unacceptable for Caesar, because an aunt in the home had a criminal record and had been investigated by DCYF for substance abuse, and in June 2005, Caesar had reported that this grandmother had hit him and that the aunt who lived in the home had also hit him with a belt. Caesar’s therapist recommended that this abuse report be investigated before Caesar was placed in the home, but DCYF ignored her recommendation and placed Caesar there anyway.
45. When DCYF placed Caesar in his grandmother’s home in September 2005, nothing in the home had changed to make it acceptable. The aunt with the criminal record was still living there and Caesar was left in her care when his grandmother went on vacation in May 2006. In addition, DCYF knew that Caesar’s father, Jason, who was only allowed to spend time with Caesar during supervised visits, had been living in the home.
46. In December 2005, DCYF staff reported that the grandmother was overwhelmed. The grandmother stated that DCYF had never given her any information about the rules and regulations governing foster parenting. New allegations against the home were investigated in December 2005.
47. Caesar’s grandmother will not adopt Caesar, nor is she an appropriate adoptive resource. It does not appear that DCYF provided Caesar or his grandmother any services to support this troubled placement.
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48. In April 2006, Caesar told a teacher at the YMCA that he had been sexually molested by a child at the Providence Center, a DCYF-licensed facility. However, it appears that this incident was never reported, in violation of law and DCYF’s own policies. In addition, it appears that Caesar did not receive any counseling or other services regarding this incident until February 2007, ten months after he was molested.
49. Caesar was diagnosed with reactive attachment disorder in September 2006. As of May 2007, Caesar’s psychiatrist noted that Caesar still needs stability and intensive individual therapy.
50. Caesar has been required to visit with his parents his entire life, despite their evident inability to care for him or keep him safe and their inappropriate behavior with him. While Caesar has been in DCYF custody, both parents have been arrested for assault and have engaged in extensive substance abuse. Both have frequently missed court dates and visits with Caesar, with Caesar left waiting for them. When they have shown up for visits, they have interacted only minimally with Caesar. When he was just two years old, Caesar was very verbal while driving to visits, but became very quiet when he saw either parent. By August 2004, Caesar had gone from “eager and excited” to having a sad expression and becoming very quiet at parental visits. After one visit in January 2005, Caesar stated, “they didn’t hug me.” As recently as April 2007, Rhonda was still missing scheduled visits with Caesar.
51. DCYF first filed a petition to terminate Caesar’s parents’ rights in 2005. But, despite Caesar’s having been in DCYF custody for his entire life, and despite his parents’ clear inability to parent him, their untreated substance abuse, and their failure to comply with their DCYF case plans, Caesar was only legally freed for adoption in June 2007.
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52. Currently, Caesar is described as loving, funny, and engaging, while extremely hyperactive and very distrustful of adults. Although freed for adoption now, there is no indication that DCYF has made any efforts to find a permanent home for Caesar.
53. As a direct result of Defendants’ actions and inactions, Caesar has been and continues to be irreparably harmed. Only six years old, Caesar has been placed in dangerous, inappropriate, and unlicensed homes, where he has been subjected to abuse that DCYF could have prevented. For the last two years, DCYF has left him in a home that will not become a permanent adoptive home for him, and DCYF has made no effort to move him to a more permanent home. He has been continually traumatized by visits with his parents, who treat him inappropriately. His prospects of adoption should be excellent, yet he languishes in foster care limbo. DCYF’s failure to provide a permanent home for Caesar causes him harm.
54. Defendants have violated Caesar’s constitutional and statutory rights by failing to protect him from harm while in state custody; by knowingly placing him in inappropriate living arrangements; by failing to provide him with mental health services necessary to prevent his mental health from deteriorating while in DCYF custody; by failing to provide him with appropriate, least-restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
55. Named Plaintiff CAESAR S. appears through his Next Friend Kathleen J. Collins. Ms. Collins has a Master of Science degree in School Psychology and a Bachelor of Arts degree in Psychology from the University of Rhode Island. For the past 17 years, Ms. Collins has worked for the Providence School Department as a school psychologist. Ms. Collins currently serves as the school psychologist for two elementary schools in Providence. She has
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known Caesar S. since he entered one of the schools in September 2006. Ms. Collins resides in Foster, Rhode Island.
DAVID T. 56. DAVID T. is a 13-year-old boy who has been in DCYF’s custody for 11 years. DCYF has cycled him through more than 14 placements, all but two of them shelters or other institutions. When David was four years old, a potential adoptive placement fell through, and David experienced loss and trauma that should have been treated. Instead, DCYF moved David to a shelter. David has not lived in a home since, and his lifetime of living in institutions, compounded with the stress of his disrupted adoptive placement, has caused his mental health to steadily deteriorate. David entered care when he was only two years old, and finding him a permanent, loving family was completely feasible. Yet DCYF has denied him the appropriate decision-making, services, and planning necessary to find him a permanent home. DCYF has done nothing to prepare David to live in a real home, and for the last decade it has not taken any of the necessary steps toward finding David a family with whom to live. 57. DCYF removed David from his mother in 1996 due to neglect. DCYF had previously taken his older brother into custody on grounds of neglect and possible sexual abuse by his mother. By the time David entered foster care, his mother had already been deemed unfit to care for at least one of David’s siblings and had lost her parental rights. Despite clear indications that David had been sexually abused while in his mother’s care, DCYF failed to ensure that he received a sexual abuse evaluation or appropriate treatment upon his entry into foster care or thereafter. 58. DCYF first placed David with a foster mother with whom he lived for two years and to whom he became attached. This was the first—and last—loving, lasting, stable
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home David would experience for the next 11 years. At the age of four, David was removed from the foster mother he referred to as “Mommy Mary” because she was unable to continue to care for him. Despite its obligation to place David in a family-like environment, DCYF moved the young child to a shelter. DCYF next moved David, not to a foster home, but to another shelter. By this time, David’s mother’s parental rights had been terminated, leaving him free for adoption. David spent a total of three months in shelters while DCYF tried to locate an adoptive home.
59. DCYF next sent David to an aunt in Michigan who expressed interest in adopting him. The aunt willingly cared for David, but encountered housing problems and other difficulties. Instead of supporting the aunt so that she could keep David, DCYF brought him back to Rhode Island and put him in a shelter where he had previously stayed. When he arrived there, he refused to get out of the car and pleaded with the caseworker to bring him back to “Mommy Mary.” Shelter staff approached the car and told four-year-old David, “the rules here have not changed.” David silently got out of the car and walked into the shelter. This was at least the fifth placement David experienced before his fifth birthday.
60. David’s behavior deteriorated while living at the shelter. Although his school indicated that David needed services to address his increasingly disruptive behavior, DCYF failed to provide them. At times DCYF failed to fulfill its responsibility to transport David to school, leaving him to spend entire days in the shelter with nothing to do. David’s behavior grew worse, and after several months the shelter asked DCYF to move him. DCYF then sent David to yet another institution, where he was injured because he did not receive proper supervision. David was severely scalded there when, at the age of five, he tried to heat water in a microwave oven.
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61. When another of David’s aunts expressed interest in caring for David, DCYF failed to pursue this opportunity. By 2000, four years after assuming custody of David, DCYF still had no viable plan for finding a permanent home for him. DCYF was aware that David’s emotional state was steadily declining, but it failed to provide the therapeutic services he needed. When the facility where David was residing informed DCYF that it could not meet his needs, DCYF nevertheless left David in that institution for several months, aware that his mental health needs were only worsening.
62. DCYF placed David in a psychiatric hospital when he was six years old. Although he was scheduled to be released from the hospital within a month, DCYF left David in this highly restrictive placement for five months, until July 2001, simply because it had no other placement option for him. DCYF finally moved David to St. Vincent’s Home, a residential treatment facility where he lived for the next two years until he was eight years old. While at St. Vincent’s, David was sexually abused by a roommate, began to act out sexually, and started to wet his bed almost nightly. David’s mental health deteriorated to such an extent that in 2003 DCYF moved him to yet another institution where he required one-on-one supervision. Although DCYF’s case plan for David indicated that he would spend only three to six months at this institution, after which he would need to live with a family, David remained at the institution for three years, and he has yet to be placed with a family.
63. Over a four-month period in 2003, David was restrained 105 times by facility staff. That year, DCYF decided that, at the age of 10, after eight years in DCYF custody, David had become “too damaged for placement.” DCYF finally permitted adoption recruitment staff to meet David in 2004, eight years after it registered him for adoption. However, later that
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year it was decided that adoption would be inappropriate for David and suspended efforts to find an adoptive home for him.
64. In 2006, DCYF moved David to a residential treatment facility out of state. Although David was only 12 years old, he was placed with an 18-year-old roommate. While at this facility, David engaged in sexual self-mutilation. When facility staff asked DCYF if sexual abuse was an issue for David, DCYF erroneously reported that there was no history of sexualized behavior and no known sexual abuse. Between 2005 and 2006, David gained over 50 pounds.
65. Despite DCYF’s obligation to ensure the safety and well-being of Plaintiff Children through frequent caseworker visits, five different DCYF case workers met with David a total of only 12 times from 2001 to 2005, including only one visit per year in 2004 and 2005. David has had no adult continuously involved in his life. Because DCYF has moved David so many times, his education has been fragmented and disrupted. David attended three different kindergartens and was moved to new schools four more times between the first and seventh grades.
66. Today, David lives in an institution in Massachusetts, where DCYF sent him in May 2007. Health care professionals have documented that his acute service needs result in part from his history of multiple placements. David is now diagnosed with bipolar disorder, mild mental retardation, and “environmental/situational influences, including his history of neglect and his multiple placements.” DCYF has taken few, if any, steps to prepare David for life outside an institution. David has an older brother who has also come forward to care for him, but DCYF has not taken the necessary steps to determine whether the brother would be a suitable permanent caretaker.
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67. As a direct result of Defendants’ actions and inactions, David has been and continues to be irreparably harmed. Having entered foster care at the age of two, he is still languishing in care 11 years later. DCYF’s failure to provide David with permanency causes him harm. David now has serious psychological problems that DCYF has exacerbated by moving him from placement to placement and by failing to provide mental health services to treat his problems as they emerged when he was a young boy. DCYF has also caused David harm by not providing his mental health professionals with his full history, depriving them of information necessary for his proper treatment.
68. Defendants have violated David’s constitutional and statutory rights by failing to protect him from harm while in state custody; by failing to provide him with mental health services necessary to prevent his mental health from deteriorating while in DCYF custody; by failing to provide him with appropriate, least-restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
69. Named Plaintiff DAVID T. appears through his Next Friend, Mary Melvin. Ms. Melvin currently works as a Senior Companion in the Senior Companion Program at the Department of Elderly Affairs in Cranston, Rhode Island. Previously, Ms. Melvin worked for many years at a nursing home for the elderly and handicapped in Providence, Rhode Island. Ms. Melvin served as a foster parent for at least 25 children in Rhode Island’s foster care system over a 20-year period. In 1993 and 1997, she received the Rhode Island Foster Parent of the Year Award. Ms. Melvin was a foster parent to David T. from 1996 to 1998, and she continued to be a resource for him after he left her care. Ms. Melvin resides in North Providence, Rhode Island.
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BRIANA, ALEXIS, CLARE, and DEANNA H. 70. BRIANA (seven), ALEXIS (five), CLARE (two), and DEANNA (ten months), are sisters in DCYF custody. DCYF has pursued the goal of reunification for each of these children without considering alternative goals, notwithstanding their parents’ significant history of maltreating children and despite clear evidence that the children cannot be safely returned to their parents’ care. Throughout the years these young girls have been in foster care, only Deanna has lived with a family that has any prospect of becoming permanent. Briana, Alexis, and Clare all currently reside in the unlicensed home of their aunt, who has not expressed interest in adopting them. According to DCYF records, the girls’ half brother, who lives with them in their aunt’s home, poses a risk to their safety. 71. DCYF placed Briana and Alexis in foster care in September 2003 because their mother, Ms. H., had been incarcerated on drug charges and their father, Mr. H., could not be located. At the time, DCYF was familiar with Mr. H.’s and Ms. H.’s long history of child neglect, which had previously resulted in the termination of Ms. H.’s parental rights to five of her older children, and the termination of Mr. H.’s rights to three children. Despite this history, DCYF assigned Briana and Alexis a permanency goal of reunification with their parents without establishing a plan of services and treatment that would make reunification a viable option. Upon Ms. H.’s release from prison in October 2003, DCYF referred both parents to parenting classes and to mental health and substance abuse evaluations. 72. DCYF first placed Briana and Alexis in the home of their Aunt J. Seven months later, in March 2004, Ms. H. was again incarcerated, this time for theft, larceny, and possibly cocaine possession. DCYF did not change the girls’ permanency goals or the service
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plan for Ms. H. following this change in circumstances. The girls were sporadically taken to visit their mother in prison.
73. In June 2004, DCYF returned Briana and Alexis to the care of their father without first determining whether he could provide a safe and appropriate home for the girls or even whether he had complied with the service plan that DCYF had established. In September 2004, Ms. H. was released from prison and moved back home with Mr. H. and the two girls, despite DCYF’s failure to evaluate whether the girls could be safely reunified with their mother or whether Ms. H. had met any of the obligations DCYF had set for her. Within two months of Ms. H.’s return, she was discharged from a substance abuse program for noncompliance. Within seven months, in February 2005, she was again incarcerated for larceny. In April 2005, DCYF closed the family’s case completely, without putting any plan in place to ensure the children’s safety upon Ms. H.’s eventual release from prison and without setting any conditions on her reunification with the family.
74. In June 2005, DCYF again took custody of Briana and Alexis, then five and four, after Mr. H. smoked crack cocaine in their presence. The girls also disclosed that an adult male who had been living in the home had sexually touched them. DCYF placed Briana and Alexis with a maternal aunt, Aunt J. There is no indication that DCYF had the girls examined for possible sexual abuse or took any other measures to address the children’s revelation.
75. In July 2005, Ms. H., who had recently been released from prison, gave birth to her eighth child, Clare. Sometime before this date, DCYF had discontinued the visits it had allowed Ms. H. to have with Briana and Alexis. DCYF took immediate custody of Clare and placed her in the home of Aunt G., another maternal aunt who had previously adopted three of
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Ms. H.’s older children. DCYF never licensed Aunt G. as a foster parent, nor did it conduct a safety assessment, although there were clear indications that DCYF knew of safety risks in the home. Upon placing Clare in the home, DCYF instructed Aunt G. that she could never allow her oldest adopted son to be alone with the infant.
76. DCYF arranged regular supervised visits between Briana and Alexis and their parents. The parents missed many of these visits, and during one visit Mr. H. was observed holding Alexis upside down by her leg. Following scheduled visits that the parents missed, the girls were angry and their behavior was troubled. Yet DCYF continued to pursue reunification for the family.
77. Upon the request of Ms. H., in November 2005, DCYF moved Briana and Alexis out of Aunt J.’s home, where they had been thriving for two years, and into to the home of their Aunt G., where Clare was living. At the time DCYF placed the girls in the home, Aunt G. was still not a licensed foster parent. DCYF again told Aunt G. not to permit her eldest adopted son to be alone with the girls. There is no indication that DCYF provided any support to Aunt G. such that she could ensure, with six children to care for, that none of the three girls were ever alone with her son; nor is there any indication that DCYF pursued any other, possibly permanent, home for the girls. DCYF continued to permit the girls’ parents to visit, under Aunt G.’s supervision. Aunt G. has made it clear to DCYF that she has no intention of adopting Briana, Alexis, or Clare.
78. Throughout 2006, Ms. H. and Mr. H. only sporadically visited their daughters, and failed to appear at important hearings involving their children. DCYF nonetheless pursued a plan of reunification for all of the girls. In October 2006, Ms. H. gave birth to her ninth child, Deanna. Ms. H. had still not undergone substance abuse treatment, so
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DCYF took immediate custody of the infant and placed her in a foster home. DCYF assigned Deanna the same permanency goal assigned to her sisters: reunification with her parents.
79. In February 2007, more than three years after Briana and Alexis first entered foster care, their father’s parental rights were terminated as to them and their sister Clare. Although DCYF filed a petition to terminate Ms. H.’s parental rights at the same time, it never pursued approval of the petition. Instead, over the next months the agency continually asked Ms. H. to consent to the termination, all the while allowing her to visit her daughters. In March 2007, both Ms. H. and Mr. H. were arrested yet again. Upon Ms. H.’s release shortly thereafter, DCYF resumed her visits with her daughters and is awaiting her consent to termination rather than actively pursuing the petition to terminate her rights involuntarily. It was not until May 2007 that DCYF finally referred two of her daughters for adoption. DCYF continues to maintain a permanency goal of reunification for Deanna, despite the lack any evidence that her parents have addressed any of the issues that led to the loss of all of their previous children.
80. As a result of Defendants’ actions and inactions, Briana, Alexis, Clare, and Deanna have been and continue to be harmed. DCYF maintained a manifestly inappropriate permanency plan of reunification for Briana, Alexis, and Clare for years. During this time Briana and Alexis were returned to a clearly unsuitable home environment, in which they suffered further neglect and possible sexual abuse. DCYF has left Briana, Alexis, and Clare to languish without appropriate permanency services in an unlicensed and overcrowded foster home which DCYF knows will not be permanent and in which their safety is in constant jeopardy. DCYF’s steadfast pursuit of reunification, along with the temporary nature of the girls’ placements, has caused and continues to cause them psychological harm. DCYF remains committed to a reunification plan for Deanna, even though the infant has never lived with her
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parents and there is little reason to believe that the goal can be achieved. The real effect of DCYF’s plan for Deanna is to deny her the opportunity for a permanent home.
81. Defendants have violated, and continue to violate, Briana, Alexis, Clare, and Deanna’s constitutional and statutory rights by failing to protect them from harm while in care and by failing to develop and implement an appropriate permanency plan in a timely manner to allow them to secure a permanent home, all of which are required by law and reasonable professional judgment.
82. Named Plaintiffs BRIANA, ALEXIS, CLARE, and DEANNA H. appear through their Next Friend, Gregory C. Elliott. Professor Elliott is Associate Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 24 years. Professor Elliott is a social psychologist, specializing in the social development of the individual. In his work he has dealt with issues of child maltreatment, and he is currently writing a book on how adolescents come to believe that their lives matter to others.
DANNY and MICHAEL B. 83. DANNY and MICHAEL B. are brothers, ages six and five, respectively. They have been in DCYF custody for over three years, but have been known to DCYF for most of their young lives because of their mother’s chronic neglect of them. In the years that they have been in custody, they have resided in what DCYF knows can only be temporary and inappropriate placements, in one of which Danny was seriously abused. Throughout their time in care, DCYF has failed to provide timely psychological services to address Danny and Michael’s mental health problems, which are becoming more acute as these young boys remain without a permanent home.
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84. Danny and Michael were first reported to DCYF as being neglected by their mother in January 2004. DCYF investigated the report and decided to take no action. The boys again came to the attention of DCYF four months later when, at ages three and two, they were found wandering unsupervised outside their home at 6 a.m. When the children were returned to their home, their mother, who has an extensive arrest record, was found unconscious from alcohol abuse. DCYF left the children in the home, but required the mother to agree to certain services.
85. In January 2005, the boys were again reported wandering unsupervised outside the home. DCYF investigated the report, but again decided to take no action. The next month, DCYF visited the home and found it to be unfit for human habitation, with human feces all over the bedroom and nowhere for the children to sleep; the mother was again intoxicated. DCYF left Danny and Michael in this wretched home. In March 2005, DCYF received a report that Danny and Michael were again wandering the streets. Despite these repeated reports, DCYF did not remove Danny and Michael from this harmful environment until April 2005. When DCYF did remove Danny and Michael from their mother’s home, it assigned them the goal of reunification.
86. DCYF first placed the brothers in the unlicensed home of their maternal great-grandmother, without first conducting a safety and background check. The greatgrandmother told DCYF that she could only care for Danny and Michael temporarily and the brothers had to be moved within the week because of the great-grandmother’s poor health. Instead of locating another home where the brothers could be together, DCYF separated Danny and Michael and placed them in separate foster homes.
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87. In July 2005, DCYF placed Danny in the home of a foster mother with a DCYF history of abuse complaints dating back to 1999. These reports included allegations that she had left children she was fostering with an unapproved caretaker for over a week, during which time the children were beaten with a wire hanger and other objects. This is the home in which Danny was later sexually assaulted.
88. DCYF returned Michael to his maternal great-grandmother, who DCYF had by then licensed, even though she told DCYF that she could not take either of the children for the long term and that she did not want Danny to live with her. For months, DCYF failed to provide the great-grandmother with Michael’s medical card, without which she could not obtain services for him.
89. During 2005, both Danny and Michael suffered mental health problems which DCYF failed to timely address. Although DCYF knew that Danny was in need of specialized services, it did not provide them to him until the end of August 2005. At that time, the children’s great-grandmother alerted DCYF to Michael’s need for mental health services as well, but DCYF did not provide mental health services to Michael until the end of the year. By the end of 2005, DCYF had evidence that Danny needed a sexual abuse evaluation.
90. Throughout 2005, Danny and Michael’s mother made no progress towards addressing the problems that had led to the boys’ removal. By May 2005, she was not complying with drug treatment, had tested positive for drugs, and was missing visits with her sons, causing Danny significant distress. By June, she had been arrested twice for drug possession and had stabbed herself in the chest in a suicide attempt. By August, she was homeless. At none of these junctures did DCYF change the boys’ permanency goal from reunification to another, more viable and appropriate goal. In December 2005, DCYF was
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directed to free Danny and Michael for adoption by terminating their mother’s parental rights if no progress was being made toward reunification by March 2006. Although no progress was made, DCYF failed to file termination petitions until July 2006.
91. In July 2006 five-year-old Danny was sexually assaulted in the home of the foster mother whose prior dangerous history was known to DCYF. The foster mother’s 15-yearold grandson, who lived in the home, was seen emerging from the bathroom of the house, his penis erect, when he grabbed Danny, pulled him into a bedroom, and locked the door. Danny screamed, “Don’t touch me!” When the grandson opened the door, Danny’s pants were down. Danny was immediately removed from this foster home, and the foster home was closed the same day. Danny told investigators that the grandson had sexually exposed himself on approximately four prior occasions. During a previous intervention in the home, DCYF had instructed the foster mother to ensure that the grandson sleep in a bedroom separate from another child.
92. After this episode of sexual abuse, DCYF placed Danny in yet another temporary foster home. In August 2006, DCYF reunited him with his brother in the home of his maternal great-grandmother, who was unable to offer the boys a permanent home. Upon being placed together, both boys began to exhibit sexualized behaviors. Within a month, DCYF removed Danny from his great-grandmother’s home because of these issues. DCYF sent Danny to a group home in Middletown, where he remains to this day.
93. Excluding respite placements, Danny has been in at least six placements while in DCYF custody and Michael has been in at least four, including DCYF’s original placement of the brothers with their mother for in-home services. Despite the fact that they are
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only six and five years old and have been in care since 2004, the brothers remain separated with no prospect of adoption.
94. As a result of Defendants’ actions and inactions, Danny and Michael have been and continue to be irreparably harmed. Danny has been sexually abused in an unfit foster home and now, at the age of six, has been institutionalized to address his acute mental health problems. Michael has been left to languish with an elderly relative who has made it clear that she cannot permanently care for him. Because DCYF has not provided proper permanency planning, neither of these very young boys has any current prospect of growing up in a loving and permanent home. The lack of any prospect of growing up in a safe and stable home is psychologically harmful. Both Danny and Michael have experienced mental health problems which DCYF has failed to adequately address.
95. Defendants have violated, and continue to violate, Danny and Michael’s constitutional and statutory rights by failing to protect them from harm while in care; by failing to develop and implement an appropriate permanency plan in a timely manner to allow them to secure a permanent home; and by failing to timely address their mental health needs, all of which are required by law and reasonable professional judgment.
96. Named Plaintiffs DANNY and MICHAEL B. appear through their Next Friend, Gregory C. Elliott. Professor Elliott is Associate Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 24 years. Professor Elliott is a social psychologist, specializing in the social development of the individual. In his work he has dealt with issues of child maltreatment, and he is currently writing a book on how adolescents come to believe that their lives matter to others.
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B. The Defendants 97. Defendant DONALD L. CARCIERI is the Governor of Rhode Island and is
sued in his official capacity. Pursuant to Article IX, Section 1 of the Constitution of Rhode Island of 1986, the executive power of the state is vested in the Governor. Pursuant to Article IX, Section 2 of the Constitution of Rhode Island of 1986, the Governor is responsible for ensuring that all executive departments and agencies within the state, including DCYF, faithfully execute and comply with applicable federal and state law. Governor Carcieri maintains his principal office at the Office of the Governor, State House, Room 115, Providence, Rhode Island, 02903.
98. Defendant JANE A. HAYWARD is the Secretary of the Executive Office of Health and Human Services in Rhode Island and is sued in her official capacity. The Executive Office of Health and Human Services provides common strategic planning, fiscal management, and related policy and programmatic oversight to and across designated human services departments within the Rhode Island executive branch, including DCYF. Secretary Hayward maintains her principal office at the Pastore Complex, Hazard Building, 74 West Road, Cranston, Rhode Island, 02920.
99. Defendant PATRICIA MARTINEZ is the Director of the Department of Children, Youth and Families and is sued in her official capacity. Pursuant to section 42-72-1 of the Rhode Island General Laws, Director Martinez is responsible for administering certain child welfare services and programs, including services and programs provided and administered by DCYF, and assuring that all such services and programs operate in conformity with constitutional, statutory, and regulatory requirements. Director Martinez serves by appointment
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of the Governor. Director Martinez maintains her principal office at the Department of Children, Youth and Families, 101 Friendship Street, Providence, Rhode Island, 02903. V. The Rhode Island Child Welfare System
100. The Department of Children, Youth and Families is responsible for ensuring the safety and well-being of the children it takes into custody in response to allegations of abuse or neglect. Its Director, Defendant Martinez, is responsible for administering and managing all child welfare staff and services statewide and for reporting to the Governor, Defendant Carcieri.
101. DCYF has the duty to deliver child protective services, which include the investigation and assessment of reports of abuse and neglect occurring in family homes and in foster care placements, and the implementation of timely, appropriate corrective steps, including a child’s removal from home or a foster care placement if warranted to keep the child safe when abuse or neglect of the child may have occurred.
102. DCYF also has the duty to ensure that children in state foster care custody are safe and to provide state-supervised services that meet the basic needs of children in its foster care custody. Such services include placing children in screened, licensed foster homes or other appropriate placements and providing children counseling to help them deal with the trauma that caused them to be removed from their homes and with the further trauma associated with being separated from their families. Foster care services also include the development and implementation of appropriate permanency plans designed to return children home quickly and safely, or, if that is not possible, timely providing children another permanent home, usually through adoption. In addition, as the legal custodian for children in state foster care custody,
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DCYF is responsible for ensuring that all children in foster care receive medical, dental, and mental health treatment; education; and assistance with developmental needs.
103. DCYF operates four regional offices responsible for case management and planning and for ensuring the delivery of necessary services to children and families; a statewide Adoptions Unit responsible for adoption-related functions such as recruiting adoptive parents, matching children with adoptive families, and coordinating with private agencies that contract with DCYF to provide specialized and targeted adoption planning and support; and a statewide Licensing Unit responsible for licensing and monitoring foster homes, adoptive homes, and group homes, including relative and child-specific placements. Licenses must be reviewed every six months and must be renewed annually to remain valid.
104. DCYF contracts with private child-placing agencies in Rhode Island for the provision of many foster care services, including the operation of shelters, group homes, residential treatment centers, and therapeutic foster homes. DCYF remains legally responsible for every Plaintiff Child who receives foster care services from a child-placing agency.
105. The Licensing Unit is also responsible for licensing child-placing agencies, promulgating the rules governing them and the standards that they must meet in furnishing contracted services, and monitoring their compliance with all applicable rules and standards. The Licensing Unit is also responsible for investigating regulatory violations and enforcing child-placing agencies’ compliance with DCYF regulations and policies.
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VI. Defendants Have Long Known That Rhode Island’s Child Welfare System Cannot Fulfill Its Duties to Plaintiff Children Without Urgent, Systemic Reform A. The 2003 System of Care Task Force Report Concluded that the Child Welfare System Was Harming Children and That Systemic Reform Was Necessary 106. In 2001, the State of Rhode Island created a System of Care Task Force
(“Task Force”) to study existing child welfare services in the state and “to design a full system of services that will provide effective supports and services to children and their families.” The Task Force’s January 2003 report confirmed that the state’s foster care system was “disorganized and fragmented” and identified widespread systemic failings and inadequacies in the system. The report concluded that abused and neglected children in state custody were being harmed as a direct result of these failings.
107. The Task Force report documented that DCYF unlawfully allowed children to languish in foster care for years: “[N]early 3 in 10 children spend more than 3 years in care and nearly 1 in 8 spends 6 or more years in care. This data contradicts the mandate that ‘foster care’ should be used as a temporary solution to perilous problems with families. Federal and state law prescribe shorter time periods in which to achieve permanency for children.”
108. The report found that DCYF failed to maintain an appropriate array of suitable placements for children in foster care: “Additional foster home resources, particularly for those ‘hard to place’ groups, are necessary in order to meet the needs of children entering placement.” Instead of “actually choosing a home on the basis of suitability” for the individual child, placements were dictated by whatever bed happened to be available at the time. The inadequacy of the placement array was due, in part, to inadequate reimbursement rates for foster parents and service providers and to the common perception of DCYF “as bureaucratic, unwieldy, insensitive and lacking in a child centered staff who can respond to foster families’
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need for service in a timely fashion. Personal styles of both administration and line staff have been described over a range from ‘caring to cruel.’” This perception, along with the low reimbursement rates, was driving needed resources out of the system: “Over approximately a five year period, an alarming decline in the total number of licensed foster homes has been evident.”
109. The Task Force report found major deficiencies in the system’s delivery of essential services to children in foster care and their families, problems it attributed, in part, to low reimbursement rates for service providers: “The State lacks sufficient out-patient services for children and families. This has been attributed to minimal supply, despite the demand, reflecting inadequate reimbursement rates.” “ Psychiatric care for [DCYF-involved] children and youth in Rhode Island… has been primarily driven by our system of reimbursement for care, rather than the individual needs and best interest of the patient.” DCYF’s failure to coordinate services for children in the foster system also hindered timely access to psychiatric services.
110. The Task Force also identified significant unmet workforce needs that directly resulted in harm to children: “Training for line staff is needed on gathering and communicating the types of child specific information that is critical for matching purposes. . . . Numerous foster placements are disrupted and resources lost due to poor communication.” Other personnel problems identified in the report included insufficient supervisory resources: “Due to the high volume of licenses that are processed on a daily basis and the number of social caseworkers that must be supervised, the need for additional support for the supervisor remains a necessity.”
111. The Task Force concluded that children in state foster care custody were suffering physical and mental harm and trauma as a direct result of the child welfare system’s
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failings and deficiencies. Increasing numbers of children in foster care were being admitted to psychiatric hospitals in Rhode Island because of limited alternative treatment opportunities. Those children and youth suffered from a wide spectrum of mental illnesses, including adjustment disorder, major depression, post-traumatic stress disorder, and bipolar disorder. The Task Force found that children and their families had to endure excessive waits for necessary care because the system lacked outpatient mental health services and because mental health services were fragmented and lacked coordination. Similarly, the Task Force found that youth who had been discharged from in-patient treatment had to be readmitted because the system did not provide sufficient treatment alternatives to psychiatric hospitalization for youth with mental illness. This issue disproportionately affected adolescents in foster care.
112. The Task Force found that children were being harmed by being moved repeatedly among inappropriate DCYF placements. One manifestation of this harm was in education: “When children experience multiple and/or frequent moves from one placement to another, their academic progress is interrupted and gaps in their education develop. It is common among youth who spend a significant amount of time roaming around the placement system to be 2 or 3 years behind their peers in their education; many leave the system without a high school diploma.”
113. The Task Force report made clear that Defendants’ child welfare system was beset by systemic problems that were causing harm to children.
B. The 2004 Federal Child Welfare Review Identified Widespread Problems in Rhode Island’s Child Welfare System 114. Because Rhode Island receives federal funding to operate its child welfare
system, it is subject to periodic reviews, Child and Family Service Reviews (“CFSRs”), conducted by a division of the United States Department of Health and Human Services
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(“HHS”). These reviews are meant to assess whether states are in substantial conformity with certain federal child welfare requirements in the areas of child safety, permanency, and wellbeing, to determine what is actually happening to children and families receiving child welfare oversight and services, and to assist states to better help these children and families.
115. Rhode Island’s CFSR was completed in 2004. In nearly every area reviewed, Rhode Island failed to meet federal standards, often by a wide margin. Rhode Island failed in the following areas: protecting children from abuse and neglect; safely maintaining children at home when possible and appropriate; providing permanency and stability in children’s living situations; preserving continuity of family relationships and connections; enhancing families’ capacity to provide for children’s needs; ensuring that children receive services to meet their educational needs; and ensuring that children receive services to meet their physical and mental health needs. The CFSR found that, in 39 percent of cases, caseworkers failed to make monthly visits with children on their caseloads. These visits are essential to ensuring that children are safe. The CFSR further found that, in 66 percent of cases reviewed, caseworkers failed to make required visits with parents of Plaintiff Children, a key element in successful reunification of children and their parents. Finally, the CFSR found that children were not receiving adequate services to meet all of their physical and mental health needs 39.6 percent of the time.
116. Rhode Island also failed to meet federal requirements for five out of six “outcome measures” reviewed: repeat maltreatment; maltreatment while in foster care; re-entry into foster care; timely reunification; and multiple placements. For example, the CFSR reported that 1.1 percent of children in foster care were being reabused or neglected while in foster care, far above the then-national norm of 0.57 percent. The CFSR also found that 19.2 percent of
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Rhode Island children who were discharged from foster care re-entered DCYF custody within 12 months, compared to the accepted national norm of 8.6 percent.
117. Rhode Island also failed to meet federal requirements for six of seven “systemic factors” reviewed: its case review system; its quality assurance system; its training; its service array; its responsiveness to the community; and its licensing, recruitment, and retention of foster and adoptive parents.
C. The 2005 T.J. Wright Child Fatality Report Called for Systemic Reform 118. After T.J. Wright was killed by foster parents chosen by DCYF, a Child
Fatality Panel conducted a full investigation into the matter. The Child Fatality Panel issued its report in October 2005, concluding that the Rhode Island child welfare system had serious, systemic, and pervasive problems. Among them:
• Background checks and other due diligence necessary to assure basic safety before placing a child in a kinship home were not being performed;
• Children were being placed in homes that were not licensed by DCYF to care for foster children, either because the homes had never been licensed or because the license had expired;
• Foster care home license applications were pending for unacceptable periods of time;
• “The caseloads of the social workers” were “untenable” and “social workers [were] unable to visit the very children they pledge to protect;” and
• Supervisors were not providing adequate supervision to caseworkers. 119. The Child Fatality Panel’s Report made 15 specific recommendations, including: • The DCYF Director of Licensing or the Director of a Family Support Unit
should be required to authorize the placement of a child in a kinship foster home since many children were being placed in relative care before licensure was completed;
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• Social worker caseloads should be reduced to no more than 14 families per social caseworker;
• DCYF should implement an active supervision plan to remedy the failure of supervisors to actively supervise their caseworkers;
• The DCYF Licensing Unit should establish a firm six-month timetable for completing the licensure process on any family foster home; and
• Kinship placements should receive the background checks and other due diligence performed on third-party foster homes to assure basic safety before a child is placed in a kinship home.
D. The Child Advocate’s 2006 Report Found Little Progress Had Been Made 120. On October 31, 2006, the Rhode Island Child Advocate reported on
DCYF’s progress in implementing the recommendations of the Child Fatality Panel. The Child Advocate concluded that DCYF had not reduced social worker caseloads and had not implemented performance evaluations or other reasonable means of supervising social workers and assuring accountability. As a result of these shortcomings, children in foster care remained in peril.
E. A 2006 Federal Regional Review Revealed Little to No Progress in Improving the Child Welfare System 121. After failing its Child and Family Service Review in 2004, Rhode Island
was required to submit a Program Improvement Plan (PIP) to the federal government. The PIP, approved in August 2005, requires that DCYF make quarterly reports to the federal government on its progress in achieving the goals set out in its plan. The federal government also conducts regional reviews of such progress. In June 2006, DCYF submitted its “Annual Progress and Services Report” to HHS, revealing that its ability to keep children safe had worsened since 2004, with an increase in both the recurrence of maltreatment to children and the incidence of child abuse or neglect experienced by children in DCYF care.
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122. Children’s permanency and stability had also worsened, with increases in the percentage of children who experienced two or more placements during their first 12 months in care. DCYF also reported that, nearly two years after failing to meet the federal standards in 2004, DCYF was less effective at promoting reunification with parents, at securing guardianship or permanent placement with relatives for children, at supporting the relationship of child and parents, and at placing children in homes located near their siblings and parents. Caseworker visits with children had also decreased since 2004.
123. According to DCYF’s sixth quarterly report on the status of its progress between November 18, 2006 and February 12, 2007, Rhode Island continues to fail to meet the national accepted norm for the incidence of child abuse and neglect in foster care.
F. The Rhode Island Senate Has Recognized the Child Welfare System’s Chronic Failings 124. On March 22, 2007, after a legislative investigation and hearing, the Rhode
Island Senate passed Senate Resolution 07-R128, in which it articulated numerous concerns in a series of findings. For example, the combination of rising caseloads and staff turnover was “creating a downward cycle of effectiveness and morale” among DCYF social workers.
125. The Resolution noted that DCYF’s problems were not new: “Numerous studies and recommendations have called on the department to institute a better coordinated and managed approach to the behavioral health needs of children.” The Senate declared that “DCYF must develop outcome and quality measures to guide funding and program design for child welfare prevention and support services, including the use of performance-based contracting with providers of care.”
126. Based on these and other findings, the Rhode Island Senate formally requested ongoing monthly reports from DCYF to address the Senate’s concerns about
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caseloads, overtime hours and costs, and “[t]he Adoption and Foster Care Unit’s performance and outcome measurements, including numbers of homes licensed, awaiting training, and awaiting licensure by type of home (therapeutic, foster, kinship, pre-adoptive).”
127. Referring to the outcome measures used in the federal review, the Senate also formally requested biannual reporting of “progress toward achieving standards for the specific measures. . . [for] safety, permanency and well-being.” Finally, the Resolution requested biannual reports of “[t]he percentage of contracts issued by DCYF that report on specific family and child-focused outcomes, and include independent evaluations of the contracted-services effectiveness; and [s]ystem changes made to address the behavioral health needs of children in the most appropriate settings.” VII. Current Systemic Child Welfare Failings and the Resulting Harm to Children
128. Defendants have failed to take appropriate steps to reform Rhode Island’s dysfunctional child welfare system, despite clear evidence that the system’s failings have deepened, have hurt children, and are putting children at further risk of harm.
A. Plaintiff Children Are Abused and Neglected in Foster Care 129. When DCYF takes a child into state foster care custody, it is responsible for
the child’s safety and well-being as long as the child remains in custody. DCYF has failed to develop and provide the range of services and systems necessary to ensure the safety and wellbeing of the children in its foster care custody. Plaintiff Children suffer harm as a direct consequence of this failure. There is no clearer example of this than the abuse or neglect of children while in foster care, such as the abuse suffered by Named Plaintiffs Danny, Tony, and David.
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130. In five of the six years from Federal Fiscal Year (FFY) 2000 through FFY 2005, Rhode Island recorded the single highest rate of substantiated child abuse or neglect occurring to children in foster care among all states that reported data. Not only has Rhode Island’s rate of abuse or neglect of children in foster care remained at or near the worst in the nation, it has consistently far exceeded benchmarks set by the federal government. In FFY 2004, 1.32 percent of children in foster care in Rhode Island were abused or neglected, more than twice the federal benchmark of a maximum rate of abuse or neglect of 0.57 percent for children in foster care. The following year, FFY 2005, the incidence of abuse or neglect of children in foster care in Rhode Island rose to 1.59 percent, or 2.79 times the federal benchmark.
131. Things have only gotten worse recently. For example, DCYF Region III recorded a 2.01 percent rate of abuse or neglect in care in May 2006. At the same time as Rhode Island’s rate of abuse in care has risen, the federal benchmark has been revised to reflect a lower acceptable rate of abuse in care nationwide; in June 2006, the federal government published a new benchmark of 0.32 percent or less. In February 2007 alone, DCYF reported eight substantiated instances of abuse or neglect in care by a foster parent or facility staff. If abuse and neglect continues at this pace, Rhode Island would have a rate of abuse or neglect in care of 3.1 percent for the year 2007, or almost ten times the new federal benchmark.
132. The rate of abuse or neglect of children in foster care in Rhode Island is so high that children in Defendants’ care are actually more likely to suffer abuse or neglect than their peers in the general population. In 2005, the most recent year for which data are available, the rate of abuse or neglect for children in the general population was 1.37 percent but the rate of abuse or neglect for children in foster care was 1.59 percent.
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133. The high rates of abuse or neglect of children in DCYF care are the direct consequence of Defendants’ actions or inactions. DCYF assigns such large caseloads to its social caseworkers that they are unable to make the regular face-to-face visits to Plaintiff Children that are essential to ensuring that these children are safe. DCYF has so few foster homes that it places children in homes without licenses, depriving them of basic protections of foster parent background checks and training. DCYF also allows licenses to lapse without taking any additional steps to ensure that Plaintiff Children in homes with lapsed licenses are safe. The shortage of foster homes forces DCYF workers to make poor decisions when faced with a choice of, for example, whether to place a child in an unlicensed, unsafe home, or in an inappropriate institution. DCYF fails to monitor or support foster parents who are managing difficult and stressful situations involving the children they parent. DCYF also fails to provide the treatment and services necessary to ensure that children’s behavior does not deteriorate in foster care. Instead of appropriately investigating and addressing abuse or neglect in foster placements, DCYF continues to rely on foster care settings known to pose a risk of harm to children. The high incidence of abuse or neglect in foster care is the predictable consequence of such conduct by Defendants.
B. Defendants Place Plaintiff Children in Homes and Institutions that Do Not Meet Their Needs and That Do Not Comply With Reasonable Professional Standards 1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements 134. In the Statewide Assessment that DCYF submitted in 2003 as part of its
federal review, it admitted that it was “not able to assure that children are placed in the types of placements that are the most family like and most appropriate for their individual needs, both at the time of initial entry and throughout their stay, because of a serious lack of foster family
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homes, resulting in demand for and use of all other types of placements. One of Rhode Island’s critical needs is for a sufficient number and type of foster homes so that the first placement in foster care is an appropriate match. We all too often place a child in a less than ideal placement at the time of entry, which later increases the likelihood that a subsequent placement will need to be made.”
135. DCYF’s chronic shortage of a sufficient number and variety of placements is due, in part, to its failure to recruit, license, train, and support prospective foster parents. Further, under DCYF’s current system, potential foster parents may have to wait for more than a year to be licensed by DCYF. The inadequate payments DCYF makes to foster parents to provide for children’s room and board are another contributing factor. DCYF also has trouble retaining foster parents, in part because foster parents can feel ill-treated by the agency.
136. Because DCYF does not have enough suitable foster care placements, it typically places Plaintiff Children in the next available bed, regardless of whether that placement meets children’s needs and regardless of whether they will receive adequate care and supervision. DCYF places children in homes or institutions specifically known to be mismatched to their needs, and often the first placement DCYF makes for a child, even an infant, is in a shelter, where a child can then linger for months.
2. Defendants Unnecessarily Place Children in Shelters and Institutions, Where They Stay for Too Long
137. Under federal law and reasonable professional standards, children taken into foster care custody must be placed in the least restrictive and most family-like environment possible, taking into account the child’s particular needs. Most children need to live with families and not in institutions. Nevertheless, DCYF places an extraordinary number of Plaintiff Children in group homes, emergency shelters, and other institutions, even when such placements
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are not warranted by children’s individual needs. In FY 2004, the last period for which data are available, Rhode Island placed 36 percent of children in its foster care custody in group or institutional settings—almost twice the national average of 19 percent. The situation today is even worse. In February 2007, DCYF placed 29 percent of the children newly removed from their homes in shelters, and DCYF placed a total of 48 percent in group or institutional settings. Many remain in these inappropriate placements for months or years.
138. Because DCYF typically places children in the next available bed, many children in state foster care custody end up spending time in emergency shelters. DCYF’s reliance on shelter placements results in multiple short-term placements, even for young children who suffer the most from this instability. Although emergency shelters are designed to be temporary placements lasting no more than 90 days, DCYF frequency exceeds this maximum, leaving children in emergency shelters for extended periods of time that can last a year or more. For example, Named Plaintiff David spent three months in a shelter when he was just four years old. Shelters are rarely, if ever, appropriate placements for children. They are not safe, nurturing, or healthy environments. Furthermore, it is far more expensive to maintain children in shelters than to maintain them with foster families.
139. Absent circumstances where children require specialized care, institutions do not meet children’s developmental and emotional needs and can cause them trauma. Institutions are particularly damaging to infants and young children, causing a variety of harms, including: delayed language development; poor mental development and adaptive skills; an increased risk of serious infectious illness; less stability; lower rates of adoption; and a greater likelihood of remaining in care.
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140. Yet DCYF routinely places large numbers of infants and young children in institutions. In FY 2004, the last period for which data are available, DCYF placed 18.9 percent of children in its custody below the age of 12 in group and institutional settings, more than twice the national median of 8.3 percent in 2003, the last period for which data are available. Although even temporary placements in such settings are harmful to young children, it is not uncommon for young children in Rhode Island’s foster care system to spend long stretches of time in group placements, such as Named Plaintiff David, who has been living in institutions for the past 9 years, since the age of four. One four-year-old girl who was put in a group home for a 90-day placement ultimately spent a year in that facility before she was transferred to a therapeutic placement.
141. Paradoxically, suitable institutional settings for those children who could benefit from congregate care are often unavailable when needed. For example, the Rhode Island Supreme Court has recognized “the chronic shortage of adequate juvenile residential ‘step-down’ alternatives to psychiatric hospitalization.” In re Stephanie B., 826 A.2d 985, 990 (R.I. 2003). As the Court noted, DCYF has admitted to keeping children, such as Named Plaintiff Sam, hospitalized in mental health institutions even when medically unnecessary because it lacked suitable residential placements. Unnecessary confinement to a psychiatric hospital is dangerous and harmful to anyone, particularly a child.
3. Defendants Send Children in Foster Care Far from Their Homes and Communities
142. Both reasonable professional standards and DCYF policy require that children in foster care whose permanency goal is reunification be placed near their homes. Removal from home and placement in foster care is inherently traumatic for children. Living in
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one’s neighborhood minimizes that trauma by helping children maintain ties with parents and siblings and by avoiding unnecessary separation from friends, school, and local supports.
143. Nevertheless, DCYF sends most children in foster care to live in placements that are distant from their homes, schools, and communities. As of June 12, 2007, at least 47.71 percent of children in foster care were living in placements outside their home region. Though some children are placed out of their home region so they can live with relatives elsewhere in the state, the prevalence of out-of-region placements is directly tied to DCYF’s failure to recruit and retain a sufficient array of suitable placements throughout the state. One child, whose family is already having difficulty visiting him in a remote in-state placement, was moved to an out-of-state facility because there is no facility in Rhode Island that can provide the required services.
144. Additionally, DCYF assigns caseworkers to children based on the region in which the children lived prior to entering foster care, not based on the region in which they are placed. As a result, many caseworkers are responsible for children who are placed in remote areas of the state. The need for caseworkers to travel to other regions to perform in-home visits, combined with their already unmanageable caseloads, means that many caseworkers cannot make the in-home visits necessary to ensure that children are safe and that their needs are being met. This leaves children who are placed remotely at even greater risk of being abused, neglected, or languishing in care without having their needs met.
4. Because Children Are Placed in Inappropriate Homes and Institutions, Their Placements Frequently Disrupt, and Children Deteriorate as They Are Moved from Place to Place
145. Reasonable professional standards provide that children in foster care should not be moved from one foster home or facility to another unless moving is in their best
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interests. Unnecessary moves increase the instability in the lives of children in foster care, often leading to attachment problems, defiance, and other mental health issues due to feelings of loss, rejection, and trauma. Research has shown that placement instability has a significant impact on children's behavioral well-being, in addition to the impact of the trauma caused by suffering abuse and neglect and being placed into foster care. For this reason, reasonable professional standards provide that agency staff, foster parents, and others involved in a child’s care should “work actively to achieve stability of care with the foster family. . . . Proactive efforts should continually promote stability and avoid disruptions in foster care.”
146. Children in Rhode Island foster care routinely experience multiple placements during their stays in state custody, largely because of inappropriate placements and Defendants’ failure to deliver necessary services to support children in their placements. The 2004 federal review concluded that placement stability in Rhode Island was the area of “greatest concern.” The CFSR found that during the review period, 31 percent of children whose cases were reviewed experienced multiple placement moves that were not in their best interests.
147. More recently, DCYF shuffles children from place to place, with even greater frequency. In FFY 2006, 14 percent of the 2,153 children who had been in out-of-home care for less than 12 months had already experienced three or more placements. Of those children who had been in care between 12 and 23 months, 33 percent had gone through three or more placements. And of those children who had been in care for more than 24 months, 67 percent had experienced three or more placements. According to DCYF, fully 24.2 percent of children in foster care experienced three or more placements during the 12 months leading up to March 31, 2006. Put another way, only 75.8 percent of foster children had two or fewer
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placements within the previous 12 months, far short of the national benchmark of at least 86.7 percent.
148. Although these data do not specify how many placements children experience beyond three, children often suffer far more than three placements during their time in foster care. One child had 15 placements over the course of only two years, with six occurring in a single 16-day period. Caesar is only five years old and has already had eight placements. Tony and Sam have already been placed in ten or more placements in the eight years they have been in DCYF custody. There is a growing pool of two- and three-year-old children in foster care who are living in shelters and have already been through multiple placements, in some cases multiple adoptive placements, in their short lives.
149. The longer children remain in DCYF foster care, the more moves and disruptions they experience. These moves are directly due to Defendants’ acts and omissions in failing to develop an adequate placement array, placing children in the first available bed rather than exercising reasonable professional judgment by basing placement decisions on the best interests of the children, and failing to assess children’s needs and to deliver services to meet those needs.
150. Defendants’ failure to provide placement stability to the children in their care causes harm to those children. Each new placement creates or exacerbates emotional trauma for children and results in behavioral, developmental, intellectual, and attachment problems. Moving children through multiple homes and institutions also often disrupts their education by forcing them to move to new schools. It frays the ties between children in foster care and their parents and siblings, friends, and community.
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5. Defendants Separate Siblings in Foster Care Because They Have Failed to Develop an Adequate Placement Array
151. Both reasonable professional standards and DCYF policy emphasize the importance of keeping siblings together when they are taken into foster care, unless one or more of the children has a serious need that justifies separation. Separating siblings should be the exception, not the rule.
152. However, the 2004 federal review found that in 25 percent of cases, such as in the case of Named Plaintiffs Danny and Michael, DCYF had failed to place children in foster care with all of their siblings when separation was not warranted by the individual children’s safety or treatment needs. In some cases, sibling separation was “due to the agency not making concerted efforts to ensure that sufficient placement resources are available to accommodate siblings.” In other cases, “insufficient efforts were made to ensure that siblings remained together.” One child who entered care at age two with his two brothers has been separated from them during the entire twelve years they have been in DCYF custody.
153. DCYF’s practice of separating siblings who do not need to be separated results in needless harm to children. Sibling relationships are often the main source of stability in the life of a child in foster care and can be essential to minimizing the lasting ill effects of a child’s time in state custody.
154. Defendants compound the harm of sibling separation by failing to ensure that siblings who are not placed together at least have regular and frequent visits with one another. The CFSR concluded that “DCYF does not make sufficient efforts to ensure that . . . visitation between children and their parents and siblings in foster care is of sufficient frequency . . . [or that] children’s connections to their families are preserved.”
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C. Defendants Fail in Their Duty to Meet Plaintiff Children’s Service Needs 1. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Assessments or Case Plans 155. When DCYF takes a child into foster care custody, it assumes a duty to
provide services to meet the child’s basic needs, including his or her educational, medical, dental, and mental health needs. DCYF’s failure to provide services that meet the needs of Plaintiff Children results in very real harm to those children.
156. A critical first step in providing the services to meet an individual child’s basic needs is for a caseworker, in consultation with the child’s parents and other knowledgeable individuals, to prepare a case plan that identifies the child’s needs and permanency goal and that specifies the services that will be provided in order to meet those needs and achieve that goal. Federal law and DCYF policy both require that a case plan be timely prepared and that it include a description of the service requirements that have been identified for the child.
157. Nevertheless, DCYF does not have a system in place to assure the timely preparation of appropriate case plans. As of June 12, 2007, over 36 percent of the children managed by a Region II caseworker had either an expired case plan or no case plan at all. The figures for children in Regions I, III, and IV were 24.59 percent, 23.77 percent, and 21.46 percent, respectively. And even when case plans are timely prepared or updated, key players are often excluded from the planning process. For example, the 2004 CFSR found that DCYF fails to involve children (where appropriate) and parents in the case planning process.
158. Instead of services being delivered to children in accordance with a properly formulated plan, children generally receive services, if at all, only in response to immediate crises. In a report issued on April 27, 2007, a DCYF Financial Review Team commissioned by Defendant Carcieri commented that services “appear to be extremely
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reactive,” with decisions about the provision of services “made on [the basis of] availability.” “Often the exigencies of the day compel the practicum of ‘placement equals treatment,’” the Financial Review Team reported. When service needs are identified, children are often put on waiting lists without regard to the urgency of their needs, because of Defendants’ failure to develop an adequate service array for these children.
159. Because DCYF fails in its duty to identify the individual needs of children in state foster care custody and fails in its duty to provide services that meet those needs, children do not get their physical, dental, mental health, and educational needs met. Due to the basic nature of these needs, the damage to children is often irreversible.
2. Defendants Violate Plaintiff Children’s Rights to Timely and Safe Reunification with Their Families When Reunification Is Appropriate
160. Reasonable professional standards require that child welfare agencies pursue reunification as the first and preferred permanency outcome for the children they place in foster care. Where safe reunification is a reasonable possibility, DCYF is required to develop and implement a case plan and a family services plan for each child and family in order to achieve family reintegration as soon as reasonably possible.
161. DCYF does not meet its obligation to facilitate appropriate and timely reunifications. The 2004 Child and Family Services Review found that only 66.2 percent of children who were reunified with their parents had achieved reunification within 12 months of initial removal, compared to the national norm of at least 76.2 percent.
162. The chronic failure of DCYF to achieve timely and appropriate reunifications is the direct result of a combination of known and preventable shortcomings. First, DCYF fails to exercise reasonable professional judgment in deciding whether it is appropriate and in the individual child’s best interests to attempt reunification in the first place.
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Second, DCYF fails to make timely and appropriate assessments of the services children and families will need in order for reunification to succeed. Third, basic reunification support services for parents, such as parenting classes and substance abuse counseling and treatment, are in short supply and often subject to long waiting lists. Fourth, even when reunification support services are provided, they typically begin only after the child has already been returned to the home; little or nothing is done to create the conditions for successful reunification in advance of the child’s return home. Fifth, the services, even when provided, are inadequate to sufficiently support parents with the demands and stresses of parenting emotionally and behaviorally challenged children. And finally, high worker caseloads preclude the regular parent-child visits needed to support the reunification process, since visits must generally be arranged and supervised by a caseworker.
163. Reasonable social work practice and DCYF policy require that regular visits between parents and their children in foster care occur in order to successfully reunify the parent and child. DCYF requires parent-child visits to occur once every two weeks, unless specific exceptions relating to the safety and well-being of the child apply. However, as of June 12, 2007, in Region II, only 24.69 percent of children had seen their parent or parents within the preceding 30 days. In Regions I, III, and IV, the numbers were 39.66 percent, 46.20 percent, and 40.41 percent, respectively. These low rates of visitation are partly the consequence of DCYF’s practice of routinely placing Plaintiff Children outside their home region. Out-of-region foster care placements make it extraordinarily difficult for many biological parents to visit regularly with their children and to sustain the connections on which successful reunification depends.
164. When parent-child visits do occur, they often take place without DCYF supervision, even where required. DCYF’s failure to supervise parent-child visits when such
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supervision is mandated poses unacceptable risks for the children that DCYF is duty-bound to protect.
165. DCYF also fails to determine what services are necessary to support safe reunification and then fails to provide those services. This sets families up for failure, subjects children to additional abuse or neglect by parents who are unprepared for reunification, and results in children being removed again and placed back in state foster care custody.
3. Defendants Violate Plaintiff Children’s Rights to Permanency by Pursuing Reunification with Parents When Not Appropriate
166. As a matter of practice, DCYF usually does not consider alternatives to reunification for at least the first 15 months that a child spends in foster care custody, regardless of whether reunification is an appropriate goal for the individual child. Often DCYF maintains the goal of reunification for children for significantly longer periods of time. In one instance, a child who entered foster care less than a month after birth remained in foster care for almost three years because DCYF refused to seek a permanent adoptive home for the child, notwithstanding the clear unwillingness of the child’s parents to take the child back. Another child’s permanency goal remains reunification, even though she has lived in a foster home for 8 years and is now 10 years old.
167. One principal reason why children in Rhode Island remain in foster care for many years with the nominal goal of reunification is that Defendants allow parents to be noncompliant or minimally compliant with reunification case plans for years, even in the face of obvious evidence that parents will never complete their case plans and will never be able to handle the responsibilities of parenting. Defendants do not abandon the ostensible goal of reunification even in cases where the parents’ rights to their multiple other children have already been terminated, such as in the case of Named Plaintiffs Briana, Alexis, Clare, and Deanna;
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where the parents do not visit their children, such as in the case of Named Plaintiffs Danny and Michael; and where the parents have made no discernible effort to complete the requirements of their reunification plans, such as in the cases of Named Plaintiffs Caesar, Sam, and Tony.
168. DCYF frequently returns children home even when it is not in that child’s best interest to do so, in part because of the scarcity of foster homes in the state.
169. Inappropriate reunification is unsafe and is likely to be unsuccessful, often leading to another removal of the child from his or her home. One girl was reunified with her abusive mother five times, each time suffering a new episode of physical abuse, followed by another removal.
170. Of the children who DCYF removed into foster care between April 1, 2005, and March 31, 2006, fully 15.2 percent had been in foster care within the 12 months prior to their removal. This 12-month re-entry rate—nearly twice the national standard of 8.6 percent set by the federal government—is concrete evidence of the systemic pattern of poor DCYF decisionmaking with regard to whether a family is ready and able to keep a child who will be reunified safe and well. DCYF returns children to their parents in cases where it is clearly inappropriate and dangerous to do so.
4. Defendants Fail to Timely Place Children Who Cannot Return Home with Permanent Adoptive Families, Allowing Them Instead to Languish in Foster Care
171. Reasonable professional standards emphasize that the primary purpose of foster care is to provide children with protection, care, and nurturing for a limited period of time only. By definition, foster care should be a temporary arrangement. Reasonable professional standards and federal law both require that when children in foster care cannot be safely reunited with their parents, they must be freed for adoption without delay and not left lingering in foster
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care indefinitely. Federal law requires child welfare agencies to file a petition to terminate the parental rights of a child’s parents, and to concurrently pursue the goal of adoption, if the child has been in state foster care custody for 15 of the most recent 22 months, unless certain exceptions are documented.
172. Indeed, Defendant Martinez told the Rhode Island Senate Committee on Health and Human Services on December 13, 2006, “It’s a moral responsibility of us in the Department” to develop alternative permanency plans for children who cannot be reunified with their parents. Defendant Martinez conceded: “Children are staying in the system too long. . . . Many of these children don’t go home.”
173. For children to be adopted, prospective adoptive parents must be recruited, screened, trained, and licensed. DCYF’s efforts in all these areas are deficient and ineffective. For example, DCYF placed a moratorium on trainings for prospective adoptive parents in 2007. Thus, even when DCYF recruits people interested in adopting children in its custody, its failure to follow through with training and licensing in a timely manner negates its success in recruitment.
174. Adoptions are also prevented or hindered by DCYF’s failure to provide an adequate adoption subsidy for children with special needs, as required by Rhode Island law. Under federal law, adoption subsidies may not exceed the child’s monthly foster care maintenance payment at the time of the adoptive placement. DCYF at times reduces the foster care maintenance payment for children living with families that are ready to adopt them, in order to reduce or eliminate the adoption subsidy after adoption is finalized. Often, the failure to provide an adoption subsidy makes the adoption unfeasible for the family and sets the child up for another failed placement and further instability.
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175. Adoptions are also delayed because DCYF fails to finalize adoptions in a timely manner. It is common to wait many months just for the “home study” of an adoptive home to take place. One adoption was not finalized for three years, long after the child had been freed for adoption.
176. Further delays result from Defendants’ failure to engage in concurrent planning, the process of searching for potential adoptive families while simultaneously working towards family reunification, as required by federal law and reasonable professional judgment. DCYF’s continued pursuit of reunification for families even after it has become obviously inappropriate delays children from moving to permanent homes, and this delay is only exacerbated by DCYF’s failure to plan for adoption concurrently.
177. Defendants have not effectively trained caseworkers to implement adoption policies. Even when DCYF caseworkers follow procedure and make sure that a child has been freed for adoption, they often fail to refer the child to the Adoption Unit, effectively putting the child in limbo until the case is rediscovered, often months later.
178. Because of all these systemic failings, children who cannot be safely reunited with their families commonly spend years in foster care without DCYF making any progress toward finding a safe and appropriate adoptive home for them. Eventually DCYF disclaims its responsibility to find permanent homes for them by declaring that they have been in care for too long to be “adoptable,” such as with Named Plaintiff David. Rather than pursuing individualized adoption strategies for these children, DCYF leaves them to languish in foster care.
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5. Defendants Violate Plaintiff Children’s Health Care Rights 179. By taking Plaintiff Children into foster care custody, Defendants assume the duty to provide for their medical, dental, and mental health needs. Despite this clear duty, the 2004 CFSR concluded that “DCYF was not consistently effective in meeting children’s physical and mental health needs.” In nearly a quarter of applicable cases, DCYF had not made concerted efforts to address children’s physical health needs. DCYF’s failure to address children’s mental health needs was even starker: “in 39 percent of the applicable cases, reviewers determined that DCYF had not made concerted efforts to address the mental health needs of children.” The CFSR Final Report noted “particular concern” with respect to the mental health needs of children, finding that DCYF often “did not respond appropriately in situations in which presenting or underlying issues warranted a mental health assessment and/or mental health services.” 180. As victims of abuse or neglect, children entering foster care often have experienced significant trauma, resulting in physical, emotional, or behavioral issues that require medical or mental health treatment. Thus, reasonable professional standards require initial health screenings for all children when they enter foster care. Those screenings should include assessments of mental health issues that are common among children in foster care, including depression, risk of suicide, severe behavioral problems, serious emotional disturbance, and substance abuse. Reasonable professional standards also require that each child have a service plan that includes treatment for any conditions diagnosed in these assessments and that access to such treatment is assured. 181. Although Defendants have made efforts to build a medical care infrastructure that will meet the needs of all Plaintiff Children, including the enrollment of
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children in foster care in the state’s managed-care program, RIte Care, insufficient coordination and integration among children’s health services and family preservation programs, poor case planning, and poor worker visitation render these efforts ineffective for many children.
182. For example, the “Baseline Oral Health Indicators” report prepared for the Rhode Island State Action for Oral Health Access Project in April 2005 determined that, “of the approximately 889 children ages 3 and over who were living in licensed foster homes and who had RIte Care coverage in 2004, 714 (80.3 percent) were reported by their foster parents to have needed dental care” and “239 (33.5 percent) of these children had problems obtaining dental care.” Rhode Island dentists commonly refuse the fee-for-service Medicaid and RIte Smiles dental coverage that DCYF provides to children in its foster care custody. Defendants’ systematic failure to ensure that children in foster care have their dental needs met is the direct result of Defendants’ actions and inactions in failing to develop an adequate array of dental service providers.
183. The need for mental health services for children in DCYF foster care custody is particularly great. “There has never been a time when more kids had mental health needs that need to be addressed,” Associate Justice Michael B. Forte of the Rhode Island Family Court told the Rhode Island House Finance Committee on April 4, 2007, during hearings on the FY 2008 budget for DCYF. “Numerous studies and recommendations have called on the department [DCYF] to institute a better coordinated and managed approach to the behavioral health needs of children,” the Rhode Island Senate declared in a March 22, 2007, resolution. This resolution came almost three years after the federal review that found that Rhode Island was not making concerted efforts to meet the mental health needs of children in foster care. That need continues to go unaddressed due to Defendants’ actions and inactions in failing to develop
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an adequate array of mental health providers who will treat children in foster care throughout Rhode Island.
184. The absence of an adequate mental and behavioral health delivery system for Rhode Island’s foster care population was well-documented in the “Rhode Island Mental Health National Outcome Measures” for 2005, issued by the federal Center for Mental Health Services. That year, only 148 children residing in family foster homes and 125 children residing in institutions received state-supplied mental health services. These low figures, the most recent available, mean that DCYF regularly fails to meet the serious and pervasive mental health needs of the children in its foster care custody. For example, one 15-year-old Plaintiff Child who is slightly mentally retarded never received any mental health counseling after she was sexually molested by her stepfather. Two years later, she is now sexually reactive. Although she has not received any therapeutic treatment for these problems, DCYF plans to reunify her with her biological father and five brothers. Other children, such as Named Plaintiffs Caesar and David, deteriorate while in care because of DCYF’s failure to provide adequate mental health services.
185. Foster parents report that DCYF is unresponsive to their efforts to obtain necessary mental and physical health care services for the children they foster, encountering such resistance and even hostility from DCYF that they have begun to fear retaliation if they do not limit their demands on behalf of the children they foster. The failure of DCYF to provide needed medical and mental health care for Plaintiff Children sometimes leads foster parents to go outside the system in an attempt to obtain those services on their own for the children they foster. When DCYF refused one foster parent’s request for an evaluation of a Plaintiff Child with autistic tendencies, the foster parent had to obtain an independent evaluation of the child. That outside evaluation led to a diagnosis of Asperger Syndrome.
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186. DCYF also fails to make sure that Plaintiff Children’s medical records follow them from place to place and fails to inform foster parents about the mental health and other medical histories of the children they foster. As a result, caregivers are unable to help ensure that the needs of children in foster care are met. Failing to inform foster parents about mental health issues, particularly those due to a child’s having been sexually abused or involving a child’s propensity for violence, also puts children in foster care and members of foster families at risk.
D. Defendants’ Mismanagement of Rhode Island’s Foster Care System Harms Plaintiff Children 1. Defendants Assign Excessive Caseloads to Caseworkers, Making It Impossible for the Caseworkers to Ensure That Children Are Safe and Having Their Needs Met 187. No child welfare system can perform its basic functions without a well-
trained, substantially experienced, adequately staffed, and appropriately evaluated workforce. When, as is the case in Rhode Island, caseworkers are inadequately trained, experienced, reviewed, or supervised, or when they are overburdened by unmanageable caseloads, a child welfare system predictably breaks down and children suffer reasonably foreseeable harms as a result.
188. Because of the vital role played by caseworkers, reasonable professional standards prescribe caseloads of between 12 and 15 children per worker for foster care services and between 10 and 12 children per worker for adoption services. Reasonable professional standards also prescribe supervisory ratios of one supervisor for every five caseworkers.
189. In disregard of these reasonable professional standards, DCYF policy sets the target caseload cap at 14 families (each of which may have more than one child) per worker for foster care services, with an absolute maximum of 28 children—nearly twice the professional
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standard. In practice, however, DCYF caseworkers consistently carry caseloads well in excess of 14 families or 28 children. Currently, individual caseloads for foster care workers greatly vary in size, with many exceeding 30 children and some even exceeding 40 children.
190. Caseworkers carry such unmanageable caseloads simply because Defendants do not employ enough caseworkers to adequately serve all the children that DCYF takes into foster care custody. This has been clear for years. In its 2003 Statewide Assessment, DCYF admitted that “[t]he current level of vacancies across all line staff positions is the most severe that the Department has experienced for many years. As we seek to comply with [applicable] performance measures to achieve conformity, we will be hard pressed to change existing practices and/or implement new practice with an already overburdened staff.”
191. More recently, Defendant Martinez acknowledged in testimony to the Rhode Island Senate Health and Human Services Committee on December 13, 2006, that DCYF faces staff shortages and high turnover among its child welfare caseworkers. Defendant Martinez further advised the committee that 31 caseworker positions had been eliminated by the General Assembly in the FY 2007 budget cycle. She also told the committee that 37 social caseworkers had left DCYF since July 2006.
192. At times, the turnover rate among caseworkers has been as high as 40 percent. High caseworker turnover requires those remaining on staff to carry additional cases on their already overflowing caseloads to cover for the vacancies. A rapid exodus of caseworkers in Region IV recently has meant that caseworkers in Regions II and III have had to take over the cases of Plaintiff Children in Region IV. Assigning the cases of children in foster care in one region to overburdened caseworkers in another part of the state makes it that much more difficult for those children to receive caseworker visits and have their needs met.
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193. Caseworkers are demoralized and frustrated by their inability to do their job because of staggering caseloads and endless paperwork. “The reality is that as the situation stands now, even if one is good at this work, it is impossible to do well. When you cannot do this job well, children and their families suffer,” DCYF caseworker Pamela McElroy told the Rhode Island Senate Health and Human Services Committee in December 2006. McElroy told the committee that after six years she had decided to leave her job at DCYF because of her heavy caseload. “The constant feeling that I am letting families down and that there is no relief in sight is my breaking point,” she said. Former DCYF caseworker John Campopiano expressed similar frustrations in a televised interview on February 25, 2007, and stated that “it’s absolutely impossible” to perform proper quality casework at existing DCYF caseload levels. Mr. Campopiano carried a caseload of 40 families—and far more individual children—before recently resigning his position out of frustration and burnout.
194. In a November 6, 2006, letter to Defendant Martinez, 42 supervisors from the DCYF Family Services Unit—the unit charged with providing social services and case management for children in foster care—warned that caseloads in their unit were rising so rapidly that they feared for the safety of children in DCYF foster care custody. The 42 signatories told Defendant Martinez that it was “imperative” that she immediately fill all social caseworker vacancies and restore Family Services Unit positions that had been eliminated.
195. Thereafter, on November 22, 2006, Defendant Carcieri received a letter from the Rhode Island Children’s Policy Coalition2 that made reference to the above November 6, 2006, letter to Defendant Martinez, stating, “[i]t is an extraordinary indicator of the depth of the problems and the lack of progress at [DCYF] that supervisory staff feel compelled to
2 The Children’s Policy Coalition is a child welfare policy and advocacy organization whose membership includes almost every significant private child placing agency and children’s services provider in Rhode Island.
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collectively put into writing their concern for the safety of the children being served by the Department.” The letter urged Defendant Carcieri “to make child safety a priority by taking whatever steps are necessary within the state personnel system to insure that staffing at [DCYF] is adequate and vacancies filled in a timely manner.”
196. Despite the urgent need to restore the caseworker positions that have been eliminated and to hire new caseworkers in order to bring caseloads down to manageable levels, Defendants failed to seek funding for a single additional caseworker position in their FY 2008 budget requests.
2. Caseworkers Fail to Make Required Child Visits 197. Regular caseworker visits are necessary for checking on a child’s safety and well-being, identifying the child’s needs, and arranging and monitoring the delivery of services to meet those needs. That is why DCYF policy requires the caseworkers to meet “face-toface. . . at least monthly” with the Plaintiff Children on their caseloads and with those children’s caregivers, and to visit foster homes at least monthly. 198. Nevertheless, the 2004 Child and Family Services Review found that fully 39 percent of children in Rhode Island’s foster care system were not receiving adequate face-toface visits from their caseworkers. Recent data show that this problem has considerably worsened. As of June 12, 2007, 75.31 percent of children in Region II had not received face-toface caseworker visits within the last 30 days. The figures for children in Regions I, III, and IV were 60.34 percent, 53.8 percent, and 59.59 percent, respectively. Statewide, 60.94 percent of all children in foster care had not received a face-to-face caseworker visit within the last 30 days. 199. Worse still, as of June 12, 2007, 43.28 percent of Plaintiff Children in Region II had not had a caseworker visit within the last 90 days. On this measure, the figures for
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children in Regions I, III, and IV were 34.87 percent, 25.23 percent, and 27.25 percent. Statewide, 31.75 percent of all children in foster care had not received a face-to-face caseworker visit within the last 90 days.
200. As bad as they are, these percentages do not tell the whole story. One child had only a single visit with his DCYF caseworker during a three-year period. Named Plaintiff David had only one visit annually with his caseworker during 2004 and 2005, and only 10 visits during the previous three years. Some foster parents report that they have not seen a caseworker in over a year. When caseworkers do visit children in foster care, it is often because the foster parents request the visits and drive the children to a designated meeting place, rather than the caseworkers initiating the visits and going to the foster homes themselves. Foster parents report experiencing great difficulty contacting DCYF caseworkers. Caseworkers do not answer their telephones or return calls and their voicemail boxes are frequently full, unable to accept more messages.
201. With such low caseworker-child visitation rates, it is simply impossible for DCYF to ensure that the children in its foster care custody are safe and that their basic needs are being met. Indeed, as the persistently high rates of abuse in care show, children in foster care in Rhode Island are not safe. Nor are their basic needs for things such as mental health care consistently met. The harmful and dangerous situation in which children in foster care find themselves is the direct result of DCYF’s failure to ensure that caseworkers regularly visit them.
3. The DCYF Licensing Unit Fails Applicable Standards, Resulting in a Chronic Shortage of Licensed Placements and Providers
202. DCYF has established a Licensing Unit charged with (1) processing applications submitted by prospective foster parents and foster care providers seeking licensure to furnish foster care services in Rhode Island, (2) ensuring that DCYF-licensed family foster
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homes, group homes, and institutions where children are placed for foster care services comply with minimum state safety requirements, and (3) responding to reports of licensure or regulatory violations involving DCYF-authorized family foster homes, group homes, or institutions.
203. Rhode Island statute provides that no non-kin foster care provider may furnish care for a child without holding a valid, current license. To secure a license in Rhode Island, the foster care provider must satisfy a set of mandatory eligibility requirements that include undergoing a criminal background check, a home safety study, training and orientation as a caretaker, and a medical clearance.
204. To be caregivers of children in DCYF custody, relatives must be certified, which involves meeting essentially the same standards as required to be a licensed foster parent. Yet in the aftermath of T.J. Wright’s death in 2005, a DCYF official candidly admitted that “[i]t’s not uncommon to see a child placed in the care of relatives while the licensing [i.e., certification] process is ongoing.” The dangerous practice of placing children in relative homes while certification is pending continues. Four months after Named Plaintiff Caesar was placed in his grandmother’s home, the home was still unlicensed.
205. A properly administered licensing process would enable DCYF to screen out potentially unsafe or unsuitable foster care providers. However, the DCYF licensing workforce is inadequately trained, severely understaffed, and responsible for onerous caseloads. There are only six full-time licensing caseworkers in the Licensing Unit, and they are responsible for all aspects of foster care as well as day care licensing throughout the state. The caseworkers carry caseloads regularly exceeding 200 cases per worker. As a result, the licensing process for a non-kin foster home currently takes more than a year.
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206. The licensing staff maintains a chronic backlog of hundreds of license applications. This backlog exists even though DCYF does not have enough foster homes to meet current needs. The backlog persists not only because the Licensing Unit is understaffed but also because Licensing Unit workers are not subject to any system of worker accountability. Because these workers are not subject to performance reviews, they are under no meaningful pressure to catch up with the licensure backlog.
207. As of March 2007, the Licensing Unit had a backlog of 423 licensing applications, most of which—295—were for homes that had children in foster care living in them despite their unlicensed status. This means approximately 10 percent of all children in DCYF foster care custody were living in unlicensed homes. In May 2007, 233 children in DCYF foster care custody were living in 164 unlicensed foster homes. Placing hundreds of children in unlicensed homes is not only a departure from the established licensing process in Rhode Island and from basic notions of good practice, it constitutes a fundamental failure to assure children’s safety.
208. The Licensing Unit is also charged with the licensure of the child placing agencies with which DCYF contracts for the provision of foster care services and placements such as independent living arrangements, supervised apartment living, residential group care facilities, family foster homes, and adoptive homes. As of June 12, 2007, only 69 percent of the child placing agencies in Rhode Island had active licenses; the rest had expired or pending licenses. By continuing to use child placing agencies that are not properly licensed, DCYF exposes children in foster care to unnecessary and unacceptable risks.
209. DCYF also does not provide the oversight necessary to ensure that licensed homes remain safe and appropriate for children. In the case of one foster home from which
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DCYF had previously removed Plaintiff Children, when the foster parent began experiencing mental health problems and refused to make use of available services for Plaintiff Children, DCYF did not revoke the foster parent’s license. Instead, DCYF simply reduced the allowable number of children in the home from three to two, and subsequently placed two children in that home.
E. Defendants’ Fiscal Mismanagement of the Child Welfare System Harms Children 210. DCYF is required by state law to seek, accept, and take advantage of all
available federal aid. Nevertheless, Defendants fail to take advantage of available federal funding for foster care, leaving the child welfare system needlessly underfunded. Defendants then spend too much of Rhode Island’s limited child welfare funds on expensive institutional placements for children who do not need institutionalization, while at the same time inadequately reimbursing the foster parents who provide the family placements that most children in foster care need. This fiscal mismanagement results in harm to Plaintiff Children.
1. Defendants Forfeit Available Federal Funds 211. Defendants forfeit millions of dollars in federal matching funds by failing to collect Title IV-E funds for eligible children.3 Rhode Island is entitled to receive federal dollars to offset the costs of maintaining abused and neglected children in foster care, as long as the state complies with certain requirements. One requirement that Defendants routinely fail to meet is ensuring that children are placed in licensed foster care settings. Defendant Carcieri admitted in his FY 2008 budget proposal for DCYF that the State would forfeit $1.5 million in federal funds for the coming year simply because of Defendants’ widespread use of unlicensed
3 To receive federal funding under Titles IV-B and IV-E of the Social Security Act, Rhode Island has entered into contracts with the federal government, known as “State Plans,” under which the State agrees to provide child welfare, foster care, and adoption services to children in foster care in accordance with specific state and federal statutes, regulations, and policies as a condition for receiving federal funds.
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placements. This forfeiture of available federal funding is one reason why Rhode Island’s child welfare system is underfunded and unable to protect children in foster care or provide for their basic needs.
212. In FFY 2000, Rhode Island received Title IV-E reimbursements for 31.9 percent of the children in DCYF foster care custody. By FFY 2004, the last year for which data are available, that figure had fallen to only 16.8 percent. In contrast, the national mean that same year was 46.43 percent.
2. Defendants Waste Limited Funds on Harmful, Costly Institutional Placements
213. DCYF makes excessive use of expensive placements such as institutions, group homes, and emergency shelters for children who do not need them, rather than developing and supporting an adequate array of appropriate foster homes and specialized foster homes, such as therapeutic, behavioral, or medical foster homes. Institutional placements are inappropriate for all children except the minority of children who have special circumstances that are best addressed in an institutional setting. And shelters are categorically inappropriate placements for all children.
214. Not only do institutional placements harm children who do not need them, they are not cost effective. Most children are best cared for in standard foster homes, but those children whose special needs preclude placement in regular foster homes can often have their needs met in a family-like setting by therapeutic foster care providers for a fraction of the cost of institutional care. Therapeutic foster care providers in Rhode Island receive on average $123 per day, compared to an average daily cost of $245 per day for in-state institutional care and $353 for out-of-state institutional care.
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215. Defendants’ reliance on institutional placements translates directly into fewer dollars available for ensuring that children in foster care are safe and that their needs are being met in the least restrictive, most family-like setting that is appropriate to their needs.
3. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents
216. To comply with federal law and reasonable professional standards, DCYF must pay maintenance payments to family foster care providers that cover the costs associated with caring for children in foster care, including “payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.” By these standards, the maintenance payments that Defendants pay foster parents are inadequate.
217. The standard daily board rates paid to foster parents by DCYF are $14.39 for children up to 3 years of age, $13.64 for children between 4 and 11 years old, and $15.79 for children ages 12 and older. These rates are less than half what the United States Department of Agriculture estimates the average middle-income, two-parent family in the urban Northeast spent to care for children in 2006 (not including health care costs). The USDA estimates, for example, that such families spend $34.92 per day on 2-year-olds, $35.54 on 9-year-olds, and $38.83 on 16year-olds. If anything, the USDA underestimates the cost of caring for a child.
218. This disparity translates into harm and risk of harm to Plaintiff Children, since financially overburdened foster parents are less able to provide proper care. It also drives away potential foster parents, thus placing a greater burden on the limited array of foster family homes and contributing to the high rate of needless and harmful institutionalization of children in foster care.
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VIII. Causes of Action First Cause of Action
(Substantive Due Process Under the United States Constitution) (Asserted by All Named Plaintiffs and Plaintiff Children)
219. Each and every allegation of the Complaint is incorporated herein as if fully set forth.
220. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm when it takes that child into its foster care custody.
221. The foregoing actions and inactions of Defendants, in their official capacities, constitute a failure to meet the affirmative duty to protect from harm all Named Plaintiffs and class members, which is a substantial factor leading to, and proximate cause of, the violation of the constitutionally protected liberty and privacy interests of all Named Plaintiffs and class members.
222. The forgoing actions and inactions of Defendants, in their official capacities, constitute a policy, pattern, practice, or custom that is inconsistent with the exercise of reasonable professional judgment and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being harmed and deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
223. These substantive due process rights include, but are not limited to: the right to protection from unnecessary harm while in government custody; the right to a living environment that protects Plaintiff Children’s physical, mental, and emotional safety and well-
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being; the right to services necessary to prevent Plaintiff Children from deteriorating or being harmed physically, psychologically, or otherwise while in government custody, including but not limited to the right to safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning and services directed toward ensuring that the child can leave foster care and grow up in a permanent family, and adequate medical, dental, psychiatric, psychological, and educational services; the right to treatment and care consistent with the purpose of the assumption of custody by the Department of Children, Youth and Families; the right not to be maintained in custody longer than is necessary to accomplish the purposes of taking the child into custody; the right to receive care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; and the right to be placed in the least restrictive placement according to a Plaintiff Child’s needs.
Second Cause of Action (Substantive Due Process Under the United States Constitution: State-Created Danger)
(Asserted by All Named Plaintiffs and Plaintiff Children) 224. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 225. Defendants’ acts of removing Plaintiff Children from their caretakers and placing them in placements that Defendants know or should know pose an imminent risk of harm to these children constitute to a policy, pattern, practice, or custom that is inconsistent with the exercise of professional judgment and that amounts deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. 42 U.S.C. § 1983.
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226. Likewise, Defendants’ acts of returning Plaintiff Children to their parents when Defendants know or should know that doing so poses an imminent risk of harm to these children constitute to a policy, pattern, practice, or custom that is inconsistent with the exercise of professional judgment and that amounts deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members.
227. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being harmed and deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. 42 U.S.C. § 1983.
Third Cause of Action (First, Ninth, and Fourteenth Amendments to the United States Constitution)
(Asserted by All Named Plaintiffs and Plaintiff Children) 228. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 229. The foregoing actions and inactions of the Defendants, in their official capacities, amount to a policy, pattern, practice, or custom of failing to exercise reasonable professional judgment and of deliberate indifference to Plaintiffs’ constitutional rights, and are the cause of the violation of such rights. As a result of Defendants’ conduct, all Named Plaintiffs and class members have been and are being severely harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a child-parent or a child-sibling family relationship, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
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Fourth Cause of Action (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 621 et seq., 670 et
seq.) (Asserted by All Named Plaintiffs and Plaintiff Children) 230. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 231. As a result of the foregoing actions and omissions by Defendants, in their official capacities, Defendants are engaging in a policy, pattern, practice, or custom of depriving all Named Plaintiffs and class members of rights conferred on them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 621-629i, 670-679b (collectively the “Adoption Assistance Act”), and the regulations promulgated thereunder, 45 C.F.R. §§ 1355–57. These rights include but are not limited to: the right to timely written case plans containing mandated elements, and to a case review system to ensure the implementation of these plans; 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 a 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 the permanent placement of the child; the right to services that protect children’s safety and health; the right to have health and educational records reviewed, updated, and supplied to foster parents or foster care providers with whom the child is placed at the time of placement; and the right of each Plaintiff Child to foster care maintenance payments paid to the foster
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parents or foster care providers with whom the child is placed that cover the actual cost of (and the cost of providing) the Plaintiff Child’s food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family, and other expenses. 42 U.S.C. §§ 622(b)(8)(A)(ii)-(iii), 622(b)(15), 629a(a)(1)(A)(i)-(ii), 629a(a)(7)-(8), 671(a)(1), 671(a)(10)(11), 671(a)(16), 671(a)(22), 672(a)-(c), 675(1), 675(4)(A), 675(5)(A), 675(5)(D)-(E); 45 C.F.R. §§ 1355.20, 1355.25, 1356.21(f)-(g), 1356.21(i), 1356.21(m), 1357.10(c)(4)-(6).
Fifth Cause of Action (Procedural Due Process) (Asserted by All Named Plaintiffs and Plaintiff Children) 232. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 233. The foregoing actions and inactions of the Defendants amount to a policy, pattern, practice, or custom of failing to exercise reasonable professional judgment and of deliberate indifference to the constitutional rights of Plaintiffs, and are the cause of the violation of such rights. As a result of Defendants’ conduct, Plaintiffs have been and are being harmed and deprived of both federal and state-created liberty or property rights without due process of law, in violation of their constitutional rights. 234. Defendants’ actions and inactions have resulted and are continuing to result in deprivations of federal-law entitlements arising from the Adoption Assistance Act and the accompanying regulations promulgated by the United States Department of Health and Human Services, to which Plaintiff Children have a constitutionally protected interest. 235. Defendants’ actions and inactions have resulted, and are continuing to result, in deprivations of the following state-law entitlements to which each Plaintiff Child has a constitutionally protected interest:
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a. The entitlements, arising from section 42-72-4(b)(14) of the Rhode Island General Laws, to suitable treatment, rehabilitation, and care in the least restrictive placement, within the child’s community wherever feasible;
b. The entitlement, arising from section 42-72-10(b) of the Rhode Island General Laws, to have the child’s health and safety be the paramount concern in making reasonable efforts toward reunification;
c. The entitlement, arising from section 47-72-5(b)(7) of the Rhode Island General Laws, to placement in a home or facility that is licensed, approved, monitored, and evaluated by DCYF;
d. The entitlements, arising from sections 42-72-10(a) and 42-72-11 of the Rhode Island General Laws, to a written, regularly updated service plan that addresses the child’s needs for care, treatment, and placement;
e. The entitlements, arising from section 42-72-10(c) of the Rhode Island General Laws, for children whose permanency goal is adoption or placement in another permanent home, to a written service plan documenting the specific steps DCYF is taking to find and recruit an adoptive family or other permanent placement, to place the child in such a family or placement, and to finalize permanency;
f. The entitlement, arising from sections 42-72-5(24) and 42-72-5.2 of the Rhode Island General Laws, to appropriate mental health services;
g. The entitlement, arising from section 42-72-13(a) of the Rhode Island General Laws, to have the costs of the child’s care, support, and maintenance paid by DCYF; and
h. The entitlements, arising from sections 42-72-5(b)(22) and 42-7215(o) of the Rhode Island General Laws, to receive a free and appropriate education in accordance with state and federal law; to be enrolled in a school program; and to have state and local educational agencies coordinate their efforts in order to provide timely initiation and continuation of educational services;
i. The entitlements, arising from the Children's Right to Freedom from Restraint Act, sections 42-72.9-1 et seq. of the Rhode Island General Laws, to freedom from abuse, corporal punishment, involuntary seclusion, or any physical or chemical restraints that
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are not medically necessary or used as a means of coercion, discipline, convenience, or retaliation; and to the protection of all procedural safeguards set out at section 42-72.9-4(c) of the Rhode Island General Laws when restraint is necessary for the safety of the child or others.
Sixth Cause of Action (Breach of Federal Contractual Obligations to Third Party Beneficiaries)
(Asserted by All Named Plaintiffs and Plaintiff Children) 236. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 237. Under Titles IV-B and IV-E of the Social Security Act, states receive certain federal monies so long as they enter into plans approved by HHS and comply with their terms. Rhode Island receives federal funding under Titles IV-B and IV-E of the Social Security Act and has submitted such State Plans to the federal government, which are legal contracts between the federal government and the State, and such plans have been approved. In these State Plan contracts, the State agrees to provide child welfare, foster care, and adoption services to Plaintiffs in accordance with specific statutes, regulations, and policies and all applicable federal regulations and other official issuances of United States Department of Health and Human Services. 238. As a result of their foregoing actions and inactions, Defendants have breached and continue to breach their obligations under Rhode Island’s State Plan contracts, and all Plaintiffs, as the intended direct third-party beneficiaries to these State Plan contracts, are (i) being denied their rights under law to the services and benefits that the State of Rhode Island is obligated to provide to them under such contracts, and (ii) being harmed thereby.
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IX. Prayer for Relief
239. WHEREFORE, the Plaintiff Children respectfully request that this
Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children may maintain this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure;
c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of Civil Procedure:
i. Defendants’ violation of Plaintiff Children’s rights under the Substantive Due Process Clause of the Fourteenth Amendment to the United States Constitution;
ii. Defendants’ violation of Plaintiff Children’s rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution;
iii. Defendants’ violation of Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq.;
iv. Defendants’ violation of Plaintiff Children’s right to procedural due process under the Fourteenth Amendment to the United States Constitution; and
v. Defendants’ breach of their contractual obligations to Plaintiff Children under the State of Rhode Island’s Title IV-E and Title IV-B state plans.
d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights;
e. Order appropriate remedial relief to ensure Defendants’ future compliance with their legal obligations to Plaintiff Children;
f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. §§ 1920 and 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
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g. Grant such other and further equitable relief as the Court deems just, necessary and proper to protect Plaintiff Children from further harm by Defendants.

DATED: September 7, 2007

Respectfully Submitted:
/s/ Jametta O. Alston________________ JAMETTA O. ALSTON (Bar No. 3909) CHILD ADVOCATE OF THE STATE OF RHODE ISLAND John O. Pastore Complex 57 Howard Avenue, 4th Floor Providence, RI 02920 Phone: (401) 462-4300 Facsimile: (401) 462-4305 Email: jalston@doa.state.ri.us
/s/ John W. Dineen__________________ JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
MARCIA ROBINSON LOWRY (Bar No. 1187053 (NY); pro hac vice application pending)
SUSAN LAMBIASE (Bar No. 2099489 (NY); pro hac vice application pending)
CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org

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Case 1:07-cv-00241-ML -LDA Document 12 Filed 09/07/07 Page 85 of 86 PageID #: 227 VERNON M. WINTERS (Bar No. 130128 (CA); pro hac vice application pending) WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vernon.winters@weil.com
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CERTIFICATION I hereby certify that on September 7, 2007, I electronically mailed the foregoing document to the attorney(s) of record listed below: Brenda D. Baum, Esq. Assistant Attorney General Rhode Island Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov Kevin Aucoin, Esq. DCYF Chief Legal Counsel 101 Friendship Street Providence, RI 02903-3716 Tel: (401) 528-3570 Kevin.Aucoin@dcyf.ri.gov
/s/ John W. Dineen______________ JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
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 Case 1:07-cv-00241-ML -LDA Document 49 Filed 01/22/08 Page 1 of 15 PageID #: 911

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD L. CARCIERI, in his official )

capacity as Governor of the State of Rhode )

Island, et al.,

)

)

Defendants.

)

Class Action Civil Action No. 1:07-cv-00241-L-LDA

PLAINTIFFS’ MEMORANDUM OF LAW SUBMITTED IN CONJUNCTION WITH THE EVIDENTIARY HEARING REGARDING
THE ADEQUACY OF PLAINTIFFS’ NEXT FRIENDS I. INTRODUCTION.
This putative class action is brought by seven foster children in Defendants’ care and legal custody who have been harmed and are at risk of future harm as a direct and foreseeable consequence of Defendants’ actions and inactions in administering a child welfare system that is plagued by pervasive, chronic, and systemic dysfunction. This suit seeks to vindicate Plaintiff Children’s well-established federal constitutional and statutory rights to be provided care and protection. It is being prosecuted by Jametta O. Alston, the Rhode Island Child Advocate, who is serving as counsel to Plaintiff Children pursuant to her statutory authority to take legal action on behalf of children in state custody.
Because the Named Plaintiffs are children, they lack the legal capacity to sue in their own right. Therefore, the Named Plaintiffs properly appear before this Court through their Next Friends, whose authority and legal capacity derives directly from Rule 17(c) of Federal Rules of Civil Procedure. Article III standing requirements are satisfied here and Defendants have not contended otherwise. To the extent that standing is an issue in this case, it is in the guise of

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“prudential standing,” a doctrine to which Rule 17(c) provides a necessary exception for minors who would otherwise have no access to the federal courts. “The purpose of Rule 17(c) is to further the child’s interest in prosecuting or defending a lawsuit, or at least to allow an evaluation of the merits of the suit relative to the child’s best interests. . . . Rule 17(c) was not intended to be a vehicle for dismissing claims . . . .” Gardner v. Parson, 874 F.2d 131, 140 (3d Cir. 1989).
The evidence presented at this hearing will show that the Next Friends are each qualified and adequate representatives under Rule 17(c). Should this Court conclude otherwise, however, dismissal would be inappropriate because it would deny these children, who are wholly dependent on Defendants for their care and protection, access to the federal courts to redress their grievances against those same custodians. See Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984) (finding reversible error where lower court failed to appoint next friend under Rule 17(c) for minor or to otherwise ensure that infant’s right to vindicate his statutory and constitutional claims was protected). II. THIS SUIT IS BEING PROPERLY PROSECUTED BY THE STATE OFFICIAL
STATUTORILY AUTHORIZED TO BRING SUCH A SUIT ON BEHALF OF CHILDREN BEING HARMED IN FOSTER CARE. Jametta O. Alston, the Rhode Island Child Advocate and counsel for Plaintiffs in this action, made the decision on behalf of the Named Plaintiffs to seek redress of their federal constitutional and statutory grievances in federal court, consistent with Child Advocate’s statutory authority and duty to “[t]ake all possible action including, but not limited to programs of public education, legislative advocacy, and formal legal action, to secure and ensure the legal, civil, and special rights of children” committed to DCYF custody. R.I. Gen. Laws § 42-73-7 (2007) (emphasis added). As recognized by Defendants, the Child Advocate has statutory authorization to review DCYF and Family Court foster care records, for the purposes of fulfilling her obligation to ensure that the rights of custodial children are safeguarded. R.I. Gen. Laws
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§ 42-73-9 (2007). Alston identified the Named Plaintiffs and the Next Friends in the exercise of that authority.
In fulfilling her mission “to protect the legal rights of children in State care,” the current Child Advocate and her staff have reviewed DCYF cases and appeared in Family Court on behalf of hundreds of children in foster care. See Mission Statement of the Office of the Child Advocate, http://www.child_advocate.ri.gov; Declaration of Jametta O. Alston submitted in support of Plaintiffs’ Motion for Class Certification & Appointment of Class Counsel ¶ 4 (“Alston Decl.”). From her first-hand examination of the particular Named Plaintiffs’ case records, she determined that they each have been harmed and are subject to further harm because of critical systemic deficiencies in Rhode Island’s child welfare system. (Alston Decl. ¶ 4–5.) From her experience representing hundreds of similarly situated children, the Child Advocate determined that the persistent and systemic nature of these problems placed the Named Plaintiffs, as well as all children in foster care, at risk of continuing harm. In her legal judgment as an attorney admitted to the State Bar of Rhode Island, and in her professional judgment as the state agent charged with vindicating the legal rights of children in foster care, the Child Advocate concluded that it would be impractical if not impossible to appear in the Family Court proceedings on behalf of each foster child, and that the children’s rights would be best protected through a federal class action requesting system-wide relief. (Alston Decl. ¶ 1–6.) To that end, she assembled a legal team to advance this action on behalf of the Named Plaintiffs and the class they seek to represent.
While the Child Advocate has the legal duty to vindicate the legal rights of the Named Plaintiffs, there is simply no basis upon which to find that she is required to bring those claims first or solely in the context of individual Family Court proceedings, or to seek the Family
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Court’s permission to proceed in another forum. In the exercise of her statutory authority, she is wholly independent of the Family Court and DCYF. In short, her preparation and filing of this federal class action falls squarely within her statutory mandate. To require the Child Advocate to seek permission of the Family Court would be inappropriate and would sacrifice the independence given to her by the Rhode Island Legislature.
Furthermore, it is entirely appropriate for the Child Advocate to identify not only plaintiff children, but adults who could stand up for those children as next friends, permitting them to bring suit in this Court against the State agents who have harmed them. It is well-settled in the First Circuit that public interest advocates may “seek out clients and initiate litigation” in circumstances such as these, where the individuals represented have no voice and no other access to the federal courts. Dev. Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281, 287–88 (1st Cir. 1982) (citing NAACP v. Button, 371 U.S. 415 (1963)); see also Inmates of the R.I. Training Sch. v. Martinez, 465 F. Supp. 2d 131, 139–40 (D.R.I. 2006) (finding conduct of plaintiffs’ counsel not improper where counsel were “using a class action lawsuit to advance the cause of civil liberties for a group of litigants . . . whose access to private legal representation is limited. They are not motivated by pecuniary gain, but by their political beliefs and their commitment to securing civil rights for underprivileged members of our society.”). III. FEDERAL RULE OF CIVIL PROCEDURE 17(c) AUTHORIZES THE NAMED
PLAINTIFF CHILDREN TO APPEAR IN THIS FEDERAL LITIGATION THROUGH NEXT FRIENDS. Rule 17(c) of the Federal Rules of Civil Procedure provides minors with access to the federal courts. The rule has two parts, the first of which applies to minors who have duly appointed representatives, such as general guardians, committees, conservators, or other similar fiduciaries and provides that such “representatives may sue or defend on behalf of a minor.” Fed. R. Civ. P. 17(c)(1) (2007). Because not all children have duly appointed representatives, the
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second part of Rule 17(c) provides that “[a] minor . . . who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2) (2007).1 The rule further provides that “[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.” Id. Thus, Rule 17(c) ensures that minors seeking to vindicate federal claims may sue in federal court, either by a duly appointed general representative or by a next friend or guardian ad litem.
The Named Plaintiffs do have a “duly appointed representative”—the Department of Children, Youth and Families. Under Rhode Island law, children placed in DCYF custody become wards and are “subject to the guardianship of the department.” R.I. Gen. Laws § 14-135 (2007). The Named Plaintiffs allege that DCYF, in its very capacity as their legal guardian, is harming them in violation of their federal statutory and constitutional rights. DCYF is thus precluded from representing the Named Plaintiffs in this matter because Plaintiffs have brought suit challenging DCYF actions and because its Director is a Defendant in this suit. Where a minor has a general representative but “‘it appears that the minor’s general representative has interests which may conflict with those of the person he is supposed to represent,’” Rule 17(c) permits the minor to sue by a next friend, as the Named Plaintiffs have done here. Dev. Disabilities Advocacy Ctr., 689 F.2d at 285 (quoting Hoffert v. Gen. Motors, 656 F.2d 161, 164 (5th Cir. 1981)).
Although the Named Plaintiffs are represented in their Family Court proceedings by guardians ad litem (GALs) or Court-Appointed Special Advocates (CASAs), those advocates are 1 The text of the Federal Rules of Civil Procedure provided here is from the version that went into effect on December 1, 2007, and which, by Order of the United States Supreme Court, “govern[s] in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Order of April 30, 2007, Adopting and Amending Rules.
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special representatives appointed specifically to represent the children in their Family Court proceedings and are not “duly appointed representatives” for purposes of Rule 17(c). See R.I. Gen. Laws § 40-11-7.1(b)(3) (2007) (requiring appointment of GAL or CASA within 7 days when petition for removal of child from parents’ custody for suspected abuse or neglect is filed). Furthermore, GALs and CASAs are not the only legal representatives charged with representing the interests of the children to whom they are assigned. As noted above, the Child Advocate is required by law to “[t]ake all possible action including, but not limited to . . . formal legal action to secure and ensure the legal, civil, and special rights of children” in the custody of DCYF. R.I. Gen. Laws § 42-73-7(6) (2007). The fact that the Named Plaintiffs are represented in Family Court by GALs or CASAs neither precludes nor weighs against their representation in this action by the Next Friends who appear for them.2 See, e.g., Gonzalez v. Reno, 86 F. Supp. 2d 1167, 1186 (S.D. Fla. 2000) (approving of next friend, even when, “under different circumstances, the Court can envision other representatives”).
Finally, whether or not any of the Named Plaintiffs have kin who might, in theory, have served as Next Friends in this action, “[t]he mere fact that an individual has blood relatives, or close friends, is not sufficient reason to appoint those persons as representatives.” Bowen v. Rubin, 213 F. Supp. 2d 220, 227 (E.D.N.Y. 2001); cf. David C. v. Leavitt, No. 93-C-206 W, 1993 WL 764518, *1–2 (D. Utah May 7, 1993) (applying Rule 17(c) and allowing suit through next friends for plaintiff children who were subjects of abuse or neglect reports and remained in their parents custody, in spite of biological parents’ sworn objections). The appropriateness of these
2 In her declaration submitted in support of Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel, Alston described counsel’s efforts to identify next friends for the Named Plaintiffs and noted that the children’s GALs “either posed a potential conflict or expressed concern regarding possible retaliation from the Department [DCYF] or other state entities and declined to become involved.” (Alston Decl. ¶ 8.)
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Next Friends is not a question of the hypothetical qualifications of other persons to represent the Named Plaintiffs in this action. Bowen, 213 F. Supp. 2d at 226–27 (holding that existence others who “might perhaps serve as better representatives” was not grounds for rejecting proposed next friends). It is a question of whether the Next Friends meet the requirements of Rule 17(c), which they do. IV. PLAINTIFF CHILDREN’S NEXT FRIENDS ARE APPROPRIATE
REPRESENTATIVES. A. The Adequacy of a Next Friend is Determined by Assessing the Next Friend’s
Good Faith and Sincere Desire to Act Solely in the Plaintiff’s Best Interests. Rule 17(c) does not impose any specific qualifications on who may act as a next friend. Because the Named Plaintiffs are the real parties in interest, their Next Friends are not themselves required to have suffered an injury giving rise to a case or controversy for purposes of Article III standing.3 See Gardner, 874 F.2d at 137 n.9 (holding that propriety of next friend to represent foster child was question of capacity under Rule 17(c), not of Article III standing); Gonzalez, 86 F. Supp. 2d at 1180–81 (distinguishing between Article III standing and capacity to sue as next friend under Rule 17(c)). Rule 17(c) provides an exception to the doctrine of “prudential standing,” which generally prohibits a litigant from raising another person’s legal rights. See Jacob v. Herff-Jones, Inc., No. Civ. 1:CV-04-1654, 2005 WL 2030449, at * 1 (M.D. Pa. Aug. 18, 2005) (unpublished decision) (“An exception to th[e] prudential standing requirement occurs when a party proceeds as the ‘next friend’ to the real party in interest”). The prudential prohibition on third-party standing derives from the precept that suits are most properly brought by the individuals whose rights are directly at stake, and who will therefore litigate with necessary incentive and zeal. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004);
3 Defendants do not dispute that the Named Plaintiffs have Article III and prudential standing.
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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). Because the Named Plaintiffs are represented by proper next friends, prudential standing is not at issue here.
Despite Rule 17(c)’s lack of any particular qualifications or limitations on who may qualify as a next friend, a court must satisfy itself that the claims of the real party in interest will be properly and zealously pursued by the representative. In assessing the adequacy of a next friend to represent a child in state custody, courts have looked to “the good faith of those claiming to speak for the infant,” and whether “the ‘next friend’ is motivated by a sincere desire to seek justice on the infant’s behalf.” Ad Hoc Comm. of Concerned Teachers v. Greenburgh #11 Union Free Sch. Dist., 873 F.2d 25, 30–31 (2d Cir. 1989); accord Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 265123, at *9 (S.D.N.Y. May 22, 1998) (quoting); Olivia Y. v. Barbour, No. 3:04CV251LN, slip op., at 10 (S.D. Miss. Mar. 11, 2005) (finding next friends to plaintiff foster children adequate because each was “generally knowledgeable about the nature and purpose of this litigation, and has a good faith interest in the named plaintiffs’ welfare and in the prosecution of this litigation”) (attached to Pls.’ Mem. of Law in Objection to Defs.’ Mot. to Dismiss as Exhibit 3).
In gauging whether a next friend is acting out of a proper motivation to pursue the interest of the injured party, some courts have looked to whether there is a “significant relationship” between the next friend and plaintiff. The significant relationship consideration is derived from Whitmore v. Arkansas, 495 U.S. 149 (1990), where the Court noted that “it has been . . . suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” 495 U.S. at 163–64 (citing Davis v. Austin, 492 F. Supp. 273, 275–76 (N.D. Ga. 1980)) (emphasis added). In Whitmore, the Court ruled that a purported next friend lacked standing to challenge the death sentence of an inmate who had not authorized such representation
8

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and had twice knowingly and voluntarily waived his right to an appeal. As an initial matter, the Supreme Court squarely situated its analysis in the context of habeas corpus litigation, in which “limitations on the ‘next friend’ doctrine are driven by the recognition that ‘[i]t was not intended that the writ of habeas corpus should be availed of, as a matter of course, by intruders or uninvited meddlers, styling themselves as next friends.’” Id. at 164 (quoting United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921)). Moreover, while the Whitmore Court noted that a significant relationship element had been “suggested” by a district court in Georgia, the presence or absence of such a requirement did not enter into the Court’s analysis. Id. at 163–66. Instead, the Court held that the purported next friend lacked “standing” to proceed as the inmate’s next friend because he had failed to establish that the inmate was unable to proceed on his own behalf. Id. at 166.
On its facts, Whitmore is not directly applicable to the issue of the capacity of next friends to represent foster children who, by virtue of their age and custodial status are unlike the adult plaintiff prisoner in Whitmore because they lack both legal capacity and the ability to seek out representation themselves. Whitmore’s “significant relationship” consideration is not an apt proxy for testing the good faith motivation of a next friend in the foster care context “[b]ecause the named Plaintiffs, like other foster children, have been removed from home and have had their preexisting ties to family and friends effectively severed, they have few, if any, significant relationships with adults who are suitable and willing to act as ‘next friends.’” Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *3 (E.D. Mich. Apr. 17, 2007); accord Marisol A., 1998 WL 265123 at *9 (recognizing that “[i]n an ideal world, there would be concerned family members or friends to represent these children in court,” and being satisfied that in the
9

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realities of New York City’s foster care system plaintiffs’ next friends were adequate despite in some instances never meeting the foster children they represented).
While the existence of a close relationship might be an indication that the next friend is sufficiently dedicated to the best interest of the child she seeks to represent, it is certainly not the only indicium, and the absence of such a relationship does not establish that the plaintiff child will be deprived of the most zealous and passionate representation possible. See Gonzalez, 86 F. Supp. 2d at 1185 (establishing test for next friend as requiring showing of disability and “some relationship or other evidence that demonstrates the next friend is truly dedicated to the interests of the real party in interest.”) (emphasis added); Bowen, 213 F. Supp. 2d at 227 (“a long-term relationship between a proposed next friend and the individual in need of representation is not required”).
B. Plaintiffs’ Next Friends Are Appropriate and Adequate Under Rule 17(c). The Named Plaintiffs’ Next Friends come before this court for the sole purpose of furthering the best interest of the children they represent by requiring Defendants to meet their constitutional and statutory duties regarding the care and treatment of the Named Plaintiffs and all similarly situated foster children. There is no evidence that they have any other motivation— financial, ideological, or otherwise—for pursuing the Named Plaintiffs’ claims. Mary Melvin appears on behalf David T., a child she fostered for two years and who referred to her as “Mommy.” Kathleen Collins, a child psychologist, appears on behalf of Caesar S., a child who she treated for over a year. Gregory Elliot appears on behalf of Sam and Tony M., Deanna H., and Danny and Michael B. because, as a direct result of Defendants’ actions, these children have been denied the opportunity to develop significant relationships with adults who are willing to make the substantial commitment to serve as their next friends and are independent of DCYF and unconflicted. These Named Plaintiffs are too young to seek out such adults themselves.
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Foster children have appeared in federal court to vindicate their rights through similar next friends in a legion of cases. See e.g. Dwayne B., 2007 WL 1140920, at *3 (finding former foster mother of named plaintiff’s sibling suitable as next friend); Clark K. v. Guinn, No. 2:06-CV1068-RCJ-RJJ, 2007 WL 1435428, *6 (D. Nev. May 14, 2007) (finding former foster parent adequate next friend); Olivia Y., No. 3:04CV251LN, slip op., at 9–10 (S.D. Miss. Mar. 11, 2005) (finding one former foster parent and friend of another former foster parent suitable) (attached to Pls.’ Mem. of Law in Objection to Defs.’ Mot. to Dismiss as Exhibit 3); Jeanine B. v. Thompson, 877 F. Supp. 1268, 1287–88 (E.D. Wis. 1995) (finding prominent community members with demonstrated interest in children’s issues adequate as next friends for foster children); Marisol A., 1998 WL 265123, at *8–9 (finding next friends, most of whom were professionals in child welfare arena, appropriate notwithstanding that “many had not met or had very limited contact with the plaintiffs they represent”). To bar the Named Plaintiffs from vindicating their federal statutory and constitutional rights simply because they have not had the opportunity to develop sufficiently close relationships with adults who can represent them in federal court would be to penalize them for being caught in a dysfunctional child welfare system that has harmed them and would deny them the opportunity to seek redress for those very harms.
C. Rule 17(c) Requires This Court to Ensure That the Plaintiff Children’s Right to Pursue Their Federal Claims Is Protected.
The Named Plaintiffs’ Next Friends satisfy the requirements of Rule 17(c). But even if this Court were to determine that they are inappropriate, Rule 17(c) requires the Court to appoint another suitable next friend or otherwise ensure that the Named Plaintiff Children are not deprived of access to the court and justice. See Gardner, 874 F.2d at 140 (“we have found no case . . . holding that a court may decline to appoint a guardian with the result of allowing the child’s interests to go unprotected”); Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984)
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(finding reversible error where lower court failed to appoint next friend under Rule 17(c) for minor or to otherwise ensure that infant’s right to vindicate his statutory and constitutional claims was protected).
If this Court declines to exercise its jurisdiction over this case, the Named Plaintiffs’ federal constitutional and statutory rights will go unprotected. The Plaintiff Children’s Family Court proceedings are no substitute for this Court’s hearing their federal claims. Those proceedings are limited in scope, consisting primarily of that court’s review of DCYF’s case plans for children in foster care. See Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 190–91 (D.R.I. 2004) (recognizing that, while “DCYF must submit annual reports to the Family Court regarding children in state custody, it is DCYF, rather than the Family Court,” that makes placement decisions). When case plans fail to meet the needs of individual children because of the limitations of DCYF’s dysfunctional system, the Family Court is powerless to order DCYF to implement the reforms needed to rectify those limitations. While the Family Court may decline to ratify decisions regarding individual children, it cannot, in the context of individual review proceedings, order DCYF to remedy the systemic problems that plague Rhode Island’s foster care system, such as the lack of an adequate array of licensed foster homes, or of enough trained and qualified caseworkers to make the regular in-placement visits that are critical to ensuring children’s safety. The systemic failures alleged in the Amended Complaint, including the paucity of safe and licensed foster homes, and the lack of supervision of children in foster care, leave the Named Plaintiff Children at constant risk of harm and constitute ongoing violations of their federal rights that cannot be addressed in their individual Family Court proceedings. (Am. Compl. ¶¶ 129–54; 187–209). Indeed, the relief that Plaintiff Children seek in this Court would not interfere with those individual Family Court proceedings. See Office of
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the Child Advocate, 296 F. Supp. 2d at 192 (noting that enforcing a federal child welfare consent decree entered into by DCYF concerning the agency’s placement of children in foster care would require “review[ing] the actions of DCYF, an agency of the state executive branch” and would “not require this Court to direct or review the Family Court’s decisions”).
Because Rule 17(c) requires the Court to take action to ensure that the Plaintiff Children’s rights in this litigation do not go unprotected, if this Court concludes that the Named Plaintiffs’ Next Friends are inappropriate (a conclusion Plaintiffs strongly oppose), the proper remedy would be for the Court to grant Plaintiffs leave to provide substitute next friends, or for the Court to appoint as next friends persons it deems more suitable. As stated by the Second Circuit when considering the adequacy of a next friend to represent a child in state custody, “‘[t]he right of access to courts by those who feel they are aggrieved should not be curtailed; and this is particularly so in the instance of children who, rightly or wrongly, attribute such grievances to their very custodians.’” Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 31 (quoting Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y. 1976)). V. CONCLUSION
The evidence at this hearing will establish that the Named Plaintiffs’ Next Friends are acting in good faith and that their sole motivation in bringing this action is to advance the best interests of the children on whose behalf they appear. As such, the Next Friends meet the standards of Rule 17(c) and applicable case law. On the basis of the testimony presented at this hearing and the facts as alleged in the Amended Complaint, this Court should permit the Named Plaintiffs to proceed through their Next Friends and should deny Defendants’ Motion to Dismiss. Should this Court determine that the Next Friends are inadequate, Plaintiffs should be granted leave to offer alternative next friends. In the alternative, this Court should appoint next friends it deems suitable to represent the Named Plaintiffs and the class of children they seek to represent.
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Dated: January 22, 2008

Respectfully submitted,
/s/ Susan Lambiase MARCIA ROBINSON LOWRY (Bar No. 1187053 (N.Y.); admitted pro hac vice) SUSAN LAMBIASE (Bar No. 2099489 (N.Y.); admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org
/s/ Jametta O. Alston JAMETTA O. ALSTON (Bar No. 3909) CHILD ADVOCATE OF THE STATE OF RHODE ISLAND John O. Pastore Center 57 Howard Avenue, Fourth Floor Cranston, RI 02920 Phone: (401) 222-1690 Facsimile: (401) 222-6652 Email: jalston@doa.state.ri.us
JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
VERNON M. WINTERS (Bar No. 130128 (Cal.); admitted pro hac vice) WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vernon.winters@weil.com

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CERTIFICATION
I hereby certify that on January 22, 2008, I electronically mailed the foregoing document to the attorneys of record listed below:

Brenda D. Baum, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
Kevin Aucoin, Esq. Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903-3716 Tel: (401) 528-3579 Fax: (401) 525-3566 kevin.aucoin@dcyf.ri.gov

James R. Lee, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
Jane Morgan, Esq. Assistant Director of Legal Services R.I. Department of Elderly Affairs Benjamin Rush Building 35 Howard Avenue Cranston, RI 02920 Tel: (401) 462-0524 Fax: (401) 462-0503 jmorgan@dea.state.ri.us

/s/ Susan Lambiase SUSAN LAMBIASE (Bar No. 2099489 (NY); admitted pro hac vice) 330 7th Avenue, 4th Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: slambiase@childrensrights.org

15

 
 Case 1:07-cv-00241-ML -LDA Document 34 Filed 10/17/07 Page 1 of 109 PageID #: 440

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., by Next Friend

:

Gregory c. Elliot; CEASER S., by Next

:

Friend Kathleen J. Collins; DAVID T., by

:

Next Friend Mary Melvin; BRIANA,

:

ALEXIS, CLARE and DEANNE H.,

:

by Next Friend Gregory C. Elliott; and

:

DANNY and MICHAEL B., by Next Friend :

Gregory C. Elliott; for themselves and those :

similarly situated

:

:

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 :

C.A. 07-241L

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(1) AND (6) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Now come the Defendants 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 (hereinafter

“State” Defendants) and move to dismiss Plaintiffs’ Complaint pursuant to pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Defendants submit that this

Complaint should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter

jurisdiction as: (a) the named plaintiffs’ “next friends” lack standing; (b) this Court

should abstain from rendering a decision that would invade the province of the State of

Case 1:07-cv-00241-ML -LDA Document 34 Filed 10/17/07 Page 2 of 109 PageID #: 441
Rhode Island’s Family Court (Younger and Rooker-Feldman abstention doctrines); and (c) the claims of three (3) of the named Plaintiffs are moot.
For these reasons, as well as those set forth in the accompanying memorandum of law.
Respectfully submitted DEFENDANTS By their Attorney, PATRICK C. LYNCH ATTORNEY GENERAL /s/ James R. Lee JAMES R. LEE (4305) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
/s/ Brenda D. Baum BRENDA D. BAUM (5184) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
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On Behalf of PATRICIA MARTINEZ, in her Official Capacity as Director of the Department of Children, Youth and Families
/s/ Kevin A. Aucoin KEVIN AUCOIN (3019) Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903 Tel: (401) 528-3579 Fax: (401) 525-3566 Kevin.Aucoin@dcyf.ri.gov
On behalf of JANE HAYWARD, in her Official Capacity as Secretary of the Executive Office of Health & Human Services,
/s/ Jane Morgan JANE MORGAN (4024) Assistant Director of Legal Services R.I. Department of Elderly Affairs Benjamin Rush Building 35 Howard Avenue Cranston, RI 02920 Tel: (401) 462-0524 Fax: (401) 462-0503 jmorgan@dea.state.ri.us
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CERTIFICATION I hereby certify that pursuant to Court Order 33 I have electronically mailed the foregoing document on this 17th day of October 2007 to the attorney(s) of record listed below: John William Dineen, Esq. jwdineen1@yahoo.com Jametta O. Alston, Esq. jalston@gw.doa.state.ri.us Susan Lambiase slambiase@childrensrights.org Vernon Winters vern.winters@weil.com Marcia Robinson Lowry mlowry@childrensrights.org
/s/ Brenda D. Baum
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., by Next Friend

:

Gregory c. Elliot; CAESAR S., by Next

:

Friend Kathleen J. Collins; DAVID T., by

:

Next Friend Mary Melvin; BRIANA,

:

ALEXIS, CLARE and DEANNE H.,

:

by Next Friend Gregory C. Elliott; and

:

DANNY and MICHAEL B. , by Next Friend :

Gregory C. Elliott; for themselves and those :

similarly situated

:

:

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 :

C.A. 07-241L

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS

I. INTRODUCTION This case is before this Honorable Court in the posture of Defendants’ motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Defendants submit that this Complaint should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction as: (a) the named plaintiffs’ “next friends” lack standing; (b) this Court should abstain from rendering a decision that would invade the province of the State of Rhode Island’s Family Court (Younger and Rooker-Feldman abstention doctrines); and (c) the claims of three (3) of the named Plaintiffs are moot.

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The Defendants further submit that, in the alternative, this Complaint should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
Plaintiffs’ Amended Complaint The instant Amended Complaint, and similar versions thereof, have been filed in
various states throughout the country by Children’s Rights and local counsel. The allegations in the amended complaint against Rhode Island are strikingly similar to those asserted against Nebraska, which were dismissed by the United States District Court for the District of Nebraska in Foreman v. Heineman, 240 F.R.D. 456 (D.Neb. 2007). The Foreman Court’s reasoning for denying the motion to certify a class, its application of the Younger Doctrine and its determination that the AACWA did not create a private right of action compel a dismissal of the instant action.
In the Amended Complaint against Rhode Island, the ten (10) named plaintiffs are minors who have purportedly filed this Amended Complaint entitled “Class Action” through their “next friends” Gregory C. Elliot, Kathleen J. Collins and Mary Melvin. Amended Complaint at ¶¶ 34, 55, 69, 82 and 96. The Amended Complaint seeks declaratory and injunctive relief under 42 U.S.C. §1983 against Donald L. Carcieri, Governor of the State of Rhode Island, Jane A. Hayward, in her official capacity as the Secretary of the Executive Office of Health and Human Services for the State of Rhode Island and Patricia Martinez, in her official capacity as Director of the Department of Children, Youth and Families (“DCYF”) (hereinafter collectively referred to as the “State”). The Amended Complaint alleges that the named plaintiffs Sam M., Tony M., David T., Briana H., Alexis H., Clare H., Deanna H. Danny B. and Michael B. are
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children in the legal custody of DCYF due to a report or suspicion of abuse or neglect. Amended Complaint ¶¶11-12.
The named plaintiffs seek “declaratory and injunctive relief to compel Defendants … to meet the legal obligations to care for and protect Rhode Island’s abused and neglected children in state custody by reforming the State’s dysfunctional child welfare system.” Amended Complaint ¶7. They request this Court to certify this case as a class action described as “all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect.” Amended Complaint ¶ 11. In short, this case asks that the Federal Court take control of significant aspects of Rhode Island’s child protective system and that it second guess past, current and future decisions of the Rhode Island Family Court. It is noteworthy that none of the decisions of the Family Court under attack here were ever contested by the Child Advocate in said Court.
Plaintiffs’ allege that the State (1) violated their substantive due process rights (Amended Complaint ¶¶ 219-223 (Count I) and ¶¶ 224-227 (Count II)); (2) violated their rights guaranteed under the First, Ninth and Fourteenth Amendments to the United States Constitution (Amended Complaint ¶¶228-229 (Count III)); violated the Adoption Assistance and Child Welfare Act of 1980 (Amended Complaint ¶¶ 230-231 (Count IV)); deprived them of procedural due process (Amended Complaint ¶¶ 232-235 (Count V)); and breached Rhode Island’s State Plan with the federal government regarding the provision of child welfare, foster care and adoption services (Amended Complaint ¶¶ 236-238 (Count VI)).
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Plaintiffs allege, similar to Foreman, that Rhode Island’s actions or inactions

violate their substantive due process rights by:

•

failing to protect “children in the legal custody of DCYF for foster care

services due to reported or substantiated allegations of abuse or neglect”

from physical, mental and emotional harm;

•

allowing their condition to deteriorate or be harmed physically or

psychologically by failing to provide safe and secure foster care

placements, appropriate monitoring and supervision, appropriate planning

and services directed toward ensuring a permanent placement and

adequate medical, dental, psychiatric, psychological and educational

services;

•

requiring them to remain in state custody longer than necessary;

•

failing to provide treatment and services in accordance with accepted,

reasonable professional judgment;

•

failing to place them in the least restrictive placement; and

•

reuniting children with their parents or placing them in placements which

pose an imminent risk of harm.

Amended Complaint ¶¶223, 225, 226.

As plaintiffs did in Foreman, plaintiffs herein also allege that the State violated

certain provisions of the Adoption Assistance and Child Welfare Act of 1980, as

amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§620-29(i), 670-

679b (collectively the “Adoption Assistance Act”) and regulations promulgated there

under, 45 C.F.R. 1355-57. Amended Complaint ¶¶ 230-231. Similar to Foreman, the

plaintiffs claim the defendants violated these statutes and regulations by failing:

•

to formulate and implement a timely case plans containing mandated

elements;

•

to place the child in foster homes or other settings that conform to

reasonable professional standards;

• to timely file petitions to terminate parental rights, or having a

documented and compelling reason for failing to do so in accordance with

statutory standards.

• to provide planning and services for permanent placement of children

whose permanency goal is adoption;

• to facilitate the child’s return to the family home or the permanent

placement of the child in an alternative permanent home;

• to provide services to protect the child’s safety and health;

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•

to have health and education records reviewed, updated and supplied to

foster parents or other foster care providers with whom the child is placed

at the time of placement;

•

to pay maintenance payments to foster parents in an amount that covers

the actual cost of food, clothing, shelter, daily supervision, school

supplies, reasonable travel to visitation with family and other expenses.

Again, as in Foreman, these plaintiffs allege that the State deprived them of their

rights to familial association in violation of the First, Ninth, and Fourteenth Amendments

to the United States Constitution. Amended Complaint ¶ 229.

Again, as in Foreman, plaintiffs also claim that the State deprived them of

constitutionally protected property and liberty interests in federal and state entitlements

arising from the Adoption Assistance Act and R.I. Gen. Laws §42-72-4(b)(14), §42-72-

10(b), §47-72-5(b)(7), §42-72-10(a) and §42-72-11, §42-72-10(c), §42-72-5(24) and §42-

72-5.2, §42-72-13(a), §42-72-5(b)(22) and §42-72-15(o) and §42-72.8-1 et seq. without

affording them the procedural due process requires under the Constitution. Amended

Complaint ¶ 233-235.

Lastly, again as in Foreman, plaintiffs claim that they are intended third party

beneficiaries of Title IV-B and IV-E of the Social Security Act and the State Plan entered

into between the State and the United States Government and that they have been

deprived of the services and benefits under this “contract”. Amended Complaint ¶¶237-

238.

Named Plaintiffs

The plaintiffs are ten children who are or were committed to the care, custody and

control of DCYF. The ten children originate from five different families. Each child is

or was in Rhode Island’s foster care system and is (or was) subject to the on-going

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jurisdiction of the Rhode Island Family Court as required by statute. R.I. Gen. Laws §§ 810-3, 14-1-32, and 40-11-7.
Attorneys for Plaintiffs The Amended Complaint was filed by Jametta O. Alston, the Child Advocate for the State of Rhode Island and John Dineen, a Rhode Island Attorney, Marcia Robinson Lowry and Susan Lambiase, attorneys with an organization entitled Children’s Rights and Vernon M. Winters, an attorney with Weil, Gotshal & Manges LLP in Redwood Shores, California. It is significant to note that Children’s Rights has been a participant in many lawsuits against states virtually identical to the instant lawsuit in some or all respects. Most recently in Foreman v. Heineman, 240 F.R.D. 456 (D.Neb. 2007) the United States District Court for the District of Nebraska dismissed the lawsuit and denied the motion to certify a class. The Amended Complaint alleges that these attorneys and entities have “investigated all claims in this action”. Amended Complaint at ¶17. It is also represented that each next friend “is sufficiently familiar with the facts of this child’s (or children’s) situation to fairly and adequately represent the child’s (or children’s) interests in this litigation.” Amended Complaint at ¶ 18. II. MATERIAL FACTS
A. The Named Children This Amended Complaint has been filed in the name of ten (10) children who are or were in the custody of the Rhode Island Department of Children, Youth and Families.1 The children, some siblings, have come into the DCYF’s care based on their own specific
1 It is asserted in the Amended Complaint that pseudonyms have been used for all minor named plaintiffs.
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and individual life experiences. Seven (7) of these children have an open case with the Rhode Island Family Court with specific dates for review by Judges of said Court. Three (3) of the children were adopted, with the Family Court approval, on September 24, 2007 and, as such, their cases at the Family Court and DCYF are closed. Each of the seven (7) remaining children have a Court Appointed Special Advocate Attorney (CASA) or a Court Appointed Guardian ad Litem representing their interests in the proceedings pending before the Family Court. (See R.I. Gen. Laws §40-11-14 - A child’s right to legal representation in child abuse and neglect proceeding which are brought before the Family Court). The legal guardians appear at each and every Family Court hearing to represent the children. Despite each child having open cases pending before the Rhode Island Family Court and a court appointed legal representative, three individuals, all unrelated to these children and not heretofore appointed to any supervisory role by any Court, have dubbed themselves the “next friends” of these children for the sole purpose of this lawsuit. For Purposes of this Motion to Dismiss, the Defendants will limit the history to the Rhode Island Family Court’s hearings and rulings affecting the children’s lives. The Defendants ask this Court to take judicial notice of the Family Court orders and decrees pertaining to the ten (1) plaintiff children and have been submitted, under seal, as exhibits..
i. Briana, Alexis, Clare and Deanna H. In September 2003 DCYF received a call from the children’s maternal aunt relating that Briana and Alexis had been residing with her for several weeks without assistance from their parents as their mother was incarcerated and their father was homeless. After conducting an investigation, DCYF filed an ex parte petition with the
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Family Court. (See Exhibits A-1 and A-97). On January 8, 2004, the Family Court ordered that DCYF fund substance abuse screens and that the girls’ mother participate in a substance abuse treatment program. (See Exhibits A-8 and A-105). On May 17, 2004, the parents admitted sufficient facts to support a finding of neglect and the Family Court committed the two children to DCYF care. (See Exhibits A-12 and A-109). Briana and Alexis’s father complied with the case plan and was reunified with his daughters on June 30, 2004. On September 9, 2004, the Family Court issued an order which approved of the Department’s plan of reunification of the children with their father. (See Exhibits A-17 and A-114). The Family Court closed the case on April 13, 2005 as Briana and Alexis were being well cared for by their father.
In June 2005 DCYF received a call reporting that the girls’ father was using drugs in their presence. The Woonsocket Police Department responded to Briana and Alexis’ home at the request of DCYF and issued a forty-eight (48) hour hold pursuant to R.I. Gen. Laws §40-11-5. DCYF filed an ex parte petition and on June 9, 2005. (See Exhibits A-21, A-119, and A-120). The Family Court ordered that (1) Briana and Alexis be placed in the protective custody of the DCYF and (2) that DCYF arrange for the children to be placed in the care of a maternal aunt, J.P. The Court also assigned a CASA attorney to represent Briana and Alexis’s interests. (See Exhibits A-23 and A-122). The Court set the case down for pretrial and permanency hearings.
In July of 2005 Clare was born. The hospital issued a seventy-two (72) hour hold on Clare pursuant to R.I. Gen. Laws § 40-11-5 and DCYF filed an ex parte petition with the Family Court. (See Exhibits A-60 and A-61). On or about July 18, 2005 the Family Court placed Clare in the temporary custody of the DCYF. (See Exhibit A-62).On or
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about July 25, 2005, the Family Court ordered that (1) DCYF place Clare with a maternal aunt, G.B and (2) Clare’s mother be provided visitation with her child. (See Exhibit A63).
On November 22, 2005, the children’s parents entered a plea to allegations of neglect before the Family Court and Briana, Alexis and Clare were committed to the care custody and control of DCYF. (See Exhibits A-28, A-28(A), A-65, A-66, A-67, A-126, and A-128). At the time of commitment, the Court ordered that Briana and Alexis be placed with the maternal Aunt G.B. on the condition that the aunt’s house was suitable to accommodate the two children. Thereafter, DCYF authorized placement of Briana and Alexis with the maternal aunt, G.B. In January of 2006, the DCYF filed a motion for review and clarification of the outstanding Family Court orders on the children’s placement. (See Exhibits A-29, A-68, and A-129). On February 6, 2006, the Family Court vacated its’ previous order directing placement of Alexis and Briana with maternal aunt G.B. and granted DCYF placement discretion. (See Exhibits A-32, A-33, A-71, and A-132). The parents filed an appeal of the Family Court’s order of February 6, 2007 to the Rhode Island Supreme Court. The case was scheduled to be heard before the Rhode Island Supreme Court for an emergency hearing on February 8, 2006. Prior to the hearing before the Rhode Island Supreme Court,
The parties reached an agreement which allowed the children to remain in the care of the maternal Aunt G.B. On March 1, 2006, it was agreed by all the parties, including the children’s CASA attorney, to have a parent/child evaluation performed by a licensed clinical practitioner. The evaluation was intended to address the relationships between the three children, the two aunts and the children’s parents.
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A permanency hearing was held by the Family Court on June 13, 2006. At the conclusion of the hearing the Family Court approved of DCYF’s case plan. Additionally, the Family Court ruled that the permanency plan of reunification was appropriate and that DCYF had documented a compelling reason to continue efforts to work towards reunification. (See Exhibits A-39, A-40, A-78, A-79, and A-138). In September of 2006, the Family Court judge noted on the Court disposition sheet that DCYF would be filing a termination of parental rights petition. (See Exhibits A-41 and A-139). ,In January of 2007, DCYF filed involuntary termination of parental rights petitions with respect to Alexis, Clare and Briana. (See Exhibit A-47, A-85, A-145).
In October of 2006, the mother of the above named three children gave birth to a baby girl named Deanna. The DCYF immediately filed a request for an ex parte Order of Detention with the Family Court in connection with the infant, Deanna. The Family Court issued an order of temporary custody and Deanna was placed in foster care with a non-relative caretaker. (See Exhibits A-157 and A-158). Shortly after birth, the infant’s mother indicated that it was her intent to give Deanna up for adoption. In January of 2007, the DCYF case-worker filed termination of parental rights petitions on all four (4) children: Alexis, Briana, Clare and Deanna. (See Exhibit A-173).
On February 6, 2007, the Family Court terminated the parental rights of the father as to Alexis, Clare and Briana. (See Exhibits A-49,A-50, A-87, A-88, A-147, and A148). The Family Court dismissed the Termination of Parental Rights petition as to Deanna. (See Exhibits A-175 and A-176). On the Court disposition form, a Family Court judge noted that the child, Deanna’s date of birth as xx-xx-06. (See Exhibit A175). In addition, the Family Court made a finding that there was sufficient evidence to
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believe that Deanna was neglected as to the father and the Deanna was ordered to the care custody and control of the DCYF. Infant Deanna continued to be placed in non-relative foster care under the supervision and jurisdiction of the Family Court. (See Exhibits A49, A-50, A-87, A-88, A-147, A-148, A-174, A-175, and A-176).
On September 24, 2007, the Family Court granted the adoption of Briana, Alexis and Clare. As a result, Briana, Alexis, and Clare, are no longer in DCYF custody and their Family Court file is closed. (See Exhibits A-58, A-59, A-95, A-96, A-155, A-156).
Deanna’s case continues to be subject to the Family Court jurisdicton. On June 20, 2007, a permanency hearing was held before the Family Court. At the conclusion of the hearing, an order was entered which approved of DCYF’s case plan and included a finding that DCYF had documented a compelling reason to continue efforts to work toward a case plan goal of reunification. (See Exhibit A-168). Thereafter, on August 3, 2007, the Family Court made findings that the Mother has neglected Deanna. (See Exhibits A-171, A-172, and A-172(a)). Deanna’s case has been assigned for review and permanency hearing by the Family Court to October 17, 2007. (See Exhibit A-171, A172 and A-172(a)).
ii. Danny and Michael B. In March of 2005, DCYF filed a neglect petition on behalf of Danny and Michael B. The petition alleged that the children where neglected based upon issues of substance abuse and domestic violence within the family home. (See Exhibits B-1 and B-2). On April 6, 2005, the neglect petition was arraigned by the Family Court. At the arraignment, the Family Court ordered the children’s mother to provide a urine screen that day and, if it was positive, the Court would order that the children be removed. The
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children’s mother admitted to the Court that the urine screen would be positive. As a result, the Family Court ruled that DCYF immediately assume protective custody of the Danny and Michael. (See Exhibits B-3 and B-4).
The Family Court assigned DCYF’s neglect petition for a trial date in September of 2005. On September 14, 2005 Danny and Michael’s mother entered an admission of facts to support a finding of neglect. The children’s father was defaulted, as he did not appear for the trial. The Family Court entered an order committing Michael and Danny to the care, custody and control of DCYF. (See Exhibits B-5 & B-6).
The Family Court held a permanency hearing on March 29, 2006. At the conclusion of the permanency hearing, the Family Court ordered that DCYF’s permanency plan goal of reunification was appropriate and that DCYF had made reasonable efforts to work toward reunification with the parents. In addition, the Family Court concluded that DCYF had documented a compelling reason to continue efforts to work toward reunification and that DCYF was required to continue to make such reasonable efforts to achieve the goal of reunification by September of 2006. (See Exhibits B-7, B-8, B-9 and B-10).
On May 10, 2006, the Family Court held a status review of Danny and Michael’s case. At that hearing, the Family Court ordered that DCYF initiate a termination of parental rights petition. (See Exhibits B-11 and B-12). DCYF filed a termination of parental rights petition with respect to Danny and Michael on June 14, 2006. (See Exhibits B-13 and B-14).
On July 28, 2006, DCYF removed Danny from his foster home when it learned of allegations that he was sexually abused by an older child in the home. On July 31, 2006,
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DCYF placed Danny with his maternal great grandparents home at their request. In September, 2006, DCYF was asked to remove Danny from his maternal great grandparents’ home and placed him at Family Connections in Newport; the move was precipitated by Danny’s sexual acting out behavior.
On September 20, 2006, the parents failed to appear for a pre-trial hearing in the Family Court and were defaulted. (See Exhibits B-15 and B-16). On November 1, 2006, the parents failed to appear for trial. (See Exhibits B-17 & B-18). As a result, the matter was scheduled for proof to November 8, 2008. (See Exhibits B-19 & B-20). On November 8, 2006, the Family Court granted the Department’s termination of parental rights petition. As a result, Danny and Michael were placed in the legal guardianship of DCYF and the Family Court ordered that DCYF is the sole party to give or withhold consent to the adoption of these children. (See Exhibit B-19 and B-20).
Subsequent to the granting of the petition terminating parental rights, the Family Court continued to conduct case reviews and permanency hearings on Michael and Danny. A stipulation was filed with the Court in November of 2006 by Attorneys for DCYF and the children’s CASA attorney acknowledging DCYF’s efforts to work toward Adoption and continuing the case for a permanency hearing. (See Exhibit B-21). A permanency hearing was held on March 28, 2007. (See Exhibits B-22 and B-23). At the permanency hearing, the Family Court approved of DCYF’s case plan goal of adoption for Danny and Michael. Additionally, the Court ruled that the permanency plan goal of adoption or guardianship was appropriate and that DCYF had made reasonable efforts to achieve this permanency plan. Thereafter, DCYF’s caseworker continued to work diligently in attempting to identify an appropriate adoptive home for the two boys. On
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June 27, 2007, a lawyer for the DCYF and the children’s CASA attorney submitted a stipulation in the Family Court that acknowledged DCYF’s efforts towards having the boys adopted. (See Exhibit B-24). Danny and Michael’s case was reviewed by the Family Court on September 12 of 2007. (See Exhibits B-25 and B-26). The Family Court has scheduled a permanency hearing in March 2008.
iii. Caesar S. In March 2002 DCYF filed a neglect petition on behalf of the child, Caesar. The petition alleged that Caesar S. was neglected based upon issues of substance abuse within his family home. (See Exhibit C-1). At the time of filing the petition, Caesar resided with his mother. His parents were arraigned by the Family Court on this petition on April 11, 2002. (See Exhibit C-2). Caesar’s case was heard by the Family Court for pre-trial and/or trial on May 6, 2002, June 10, 2002, September 9, 2002 and September 16, 2002. (See Exhibits C-3, C-4, and C-5). On September 16, 2002, DCYF amended the child protective petition to include an allegation of “dependency.” Caesar’s mother entered a plea to the amended petition. Based upon this plea, the Family Court found that Caesar was a “dependent child”2 and committed him to the care, custody and control of DCYF. Additionally, the Family Court ordered that Caesar continue to be placed with his mother
2 The Family Court found Caesar to be a “dependant child” pursuant to R.I. Gen. Laws §14-1-1, et seq. R.I. Gen. Laws § 14-1-3(6) defines a “dependent” child to mean: "Dependent" means any child who requires the protection and assistance of the court when his or her physical or mental health or welfare is harmed or threatened with harm due to the inability of the parent or guardian, through no fault of the parent or guardian, to provide the child with a minimum degree of care or proper supervision because of: (i) The death or illness of a parent; or (ii) The special medical, educational, or social service needs of the child which the parent is unable to provide. It is significant to note that the Family Court did not adjudicate Caesar as an abused or neglected child.
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and that his mother was ordered to cooperate with DCYF. Caesar’s case was continued for a permanency hearing to April 7, 2003. (See Exhibits C-6, C-7, and C-8).
Prior to the next scheduled hearing, on December 6, 2002, DCYF filed an Emergency Motion for Change of Placement for Caesar following an investigation into allegations that Caesar’s mother was living with her two sisters, without permission of the landlord, and that Caesar had been found unattended in a car seat several days earlier. (See Exhibit C-9). DCYF’s motion to change placement was heard and granted by the Family Court on December 13, 2002. The Family Court ordered that Caesar be removed from his mother’s care and placed in the protective custody of DCYF. (See Exhibit C10).
Between December 13, 2002 and February 9, 2004 the Family Court heard DCYF’s child protective petition on approximately ten (10) occasions in the nature of case review and/or permanency hearings. (See Exhibits C-10 through C-21). At each review and hearing, DCYF submitted a report to the Family Court detailing Caesar’s parents’ progress towards the case plan goal of reunification. At conclusion of various hearings, the Family Court entered a number of Orders pertaining to Caesar’s well being. By way of example:
• On December 13, 2002 the Family Court ordered DCYF to explore placement of mother and Caesar together in a residential treatment program. (See Exhibit C-10).
• On March 14, 2003 the Family Court gave DCYF discretion to increase visitation between Caesar and his mother. (See Exhibit C-11).
• On April 14, 2003, the Family Court approved DCYF’s case plan and ordered that DCYF continue to pursue placement with a relative. (See Exhibit C-13).
• On June 9, 2003 the Family Court ordered that DCYF arrange parent/child evaluations and psychological assessments for both parents. (See Exhibit 15).
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• On November 18, 2003 the Family Court ordered DCYF to arrange visitation between Caesar and his maternal grandmother. (See Exhibit C19).
Thereafter, the Family Court continued to review Caesar’s case on a regular basis.
Following the permanency hearing of May 10, 2004, the Family Court entered an order
approving DCYF’s case plan. In addition, the Court concluded that the case plan goal of
reunification was appropriate and that DCYF had made reasonable efforts to facilitate
reunification of Caesar with his parents. Additionally, the Family Court found that
DCYF had documented a compelling reason to continue efforts to work toward a case
plan goal of reunification. Finally, it ordered that DCYF was required to continue to
make efforts to reunify Caesar with his mother until August of 2004. (See Exhibits C-22
and C-23).
On December 13, 2004, DCYF informed the Family Court that alternate
permanency planning for Caesar would be explored over the next 3 months. On January
31, 2005, DCYF filed an Involuntary Termination of Parental Rights petition on behalf of
Caesar. (See Exhibit C-24). Caesar’s parents were arraigned on the TPR petitions on
February 28, 2005. Denials were entered by both parents and the matter was continued to
March 28, 2005. (See Exhibit C-25). Between March 28, 2005 and September 12, 2005
the Family Court held hearings on thirteen different days. Of significance:
• On May 26, 2005 Caesar’s foster mother advised the Court that she had decided not to adopt Caesar. The Court instructed DCYF to explore Caesar’s paternal grandmother and his maternal great grandmother as possible adoptive placements for him and to submit a report to the Court. (See Exhibit C-30).
• On July 14, 2005 DCYF informed the Court of its concerns regarding placement of Caesar with his paternal grandmother because he had made negative comments about his grandmother; there was a question as to whether or not his father resided in the home; and his paternal aunt, who also resided there, was due to deliver a baby anytime. The Family Court
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gave DCYF six additional weeks to complete its exploration of this potential placement. (See Exhibit C-33). • On September 12, 2005 the Court granted DCYF’s request to dismiss the TPR petitions without prejudice, with the condition that the parents waived their right to have DCYF make reasonable efforts to reunify the child with one of the parents from that day forward and that the TPR resume priority status if it were re-filed. DCYF’s child protective petition was continued to December 12, 2005 for Court review. (See Exhibit C38).
On November 14, 2005 the Family Court conducted a permanency hearing. At that time
the Court ordered:
• A case plan goal of reunification was not appropriate; reasonable efforts to reunify were not required;
• The creation of a new case plan, with a goal of adoption; • The matter to be continued to November 20, 2006 for further permanency
hearing. (See Exhibit C-39).
DCYF filed a second Termination of Parental Rights petition on behalf of the
child, Caesar on August 3, 2006. (See Exhibit C-40). On August 30, 2006 the TPR
petition was arraigned by the Family Court as to both parents. (See Exhibit C-41). The
Court scheduled the TPR petition for a case management conference on October 5, 2006.
(See Exhibit C-42). Between October 5, 2006 and June 1, 2007 Caesar’s case was heard
by the Family Court on the TPR petitions and the Department’s child protective petitions
on six (6) separate occasions. Of significance:
• On November 20, 2006 the Court held a permanency hearing. At the conclusion of the hearing, the Court approved DCYF’s case plan. In addition, it found that the case plan goal of adoption or guardianship was appropriate and that DCYF had made reasonable efforts to finalize the permanency plan goal of adoption or guardianship. (See Exhibit C-44).
• On June 1, 2007 the Court granted DCYF’s Termination of Parental Rights petitions as to Caesar’s mother and father. Caesar was placed under the legal guardianship of DCYF and DCYF was the sole legal guardian to consent to adoption of this child. The Court further ordered DCYF to make efforts to secure an adoptive family willing to enter into an open adoption with Caesar’s mother and father; visits to continue until such time as an adoptive home is identified; and that the matter would be
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continued for case review before the Family Court on August 31, 2007. (See Exhibit C-48).
Caesar’s case was reviewed by the Family Court on the Department’s petition on August 31, 2007 and is scheduled for a permanency hearing on November 5, 2007. (See Exhibits C-44 and C-49). At the present time DCYF continues to work with Adoption Rhode Island to prepare Caesar for adoption and to identify and appropriate adoptive resource for this child.
iv. Sam and Tony M. In December of 1998, DCYF filed child protective petitions in the Family Court on behalf of Sam and Tony M. based upon a report from an Associate Justice of the Family Court that one of the parents was attempting to dismiss a domestic abuse restraining order. (See Exhibits D-1 & D-34). Sam and Tony M. were allowed to remain in their mother’s care and DCYF offered services to the family. On March 11, 1999, the children’s mother entered an admission to allegations of “dependency” and the children’s father entered an admission to allegations of “neglect.” As a result, Sam and Tony were committed to the care, custody and control of DCYF and remained in their mother’s home. (See Exhibits (D-2 & D35). In May of 1999, Sam and Tony were placed in the protective custody of DCYF after a DCYF caseworker found the children in the care of their mother – who appeared to be intoxicated unable to care for the two boys. The Family Court authorized the removal of Sam and Tony from their mother’s home and DCYF arranged for the children to remain in the care of a family friend. (See Exhibits D-3 and D-36). Thereafter, DCYF offered both parents the opportunity to participate in treatment services.
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In January of 2000, the Children were allowed to return to the care of the Parents under supervision of the Family Court. In March, 2000, a the children’s father left the family home. On June 15, 2000, the Family Court entered an Order suspending all visits between the father and the children. (See Exhibits D-5 and D-38).
Sam and Tony’s case remained open in the Family Court through November of 2001. At the case review of December 14, 2000, a Family Court judge noted on the Court disposition form that the Mother and the children were doing well and that the Mother intended to obtain domestic custody. (See Exhibit D-39). Thereafter, the Family Court continued to conduct regular case reviews. (See Exhibits D-7, D-7, D-8, D-9, D40, D-41, D-42, and D-43). On November 21, 2001, the Family Court closed the DCYF child protective petition after it awarded sole custody of Sam and Tony to their mother. (See Exhibit D-44).
In July of 2002 DCYF filed a second child protective petition on behalf of Sam and Tony M. (See Exhibits D-10 and D-45). The petition was filed based upon allegations that the children’s stepfather had sexually abused one of the children. The Family Court permitted the children to remain in the care of their mother and issued a restraining order prohibiting the mother from having the children in the care of the stepfather. (See Exhibits D-11, D-46, and D-47). On January 2, 2003 the Family Court closed the DCYF child protective petition. (See Exhibits D-14, D-15 and D-50).
At the end of January of 2003, Tony was admitted to Butler Hospital following an incident in which he chased his mother with a knife. On February 3, 2003, DCYF filed a third child protective petition on behalf of Sam and Tony following an auto accident in which their mother was allegedly driving the vehicle under the influence of alcohol and
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Sam was a passenger in the vehicle. (See Exhibits D-16 and D-51). Based upon this report, the Family Court ordered Sam and Tony into the protective custody of the DCYF.
Thereafter the child protective petitions were processed through the Family Court. On October 23, 2003 the children’s mother entered an admission of sufficient facts to support a finding of neglect. The Court ordered Sam and Tony committed to the care custody and control of DCYF. (See Exhibits D-17 and D-55). Subsequent to the October 23, 2003 hearing, the Children, Sam and Tony were reunified with their Mother under the supervision of the DCYF.
In May of 2004 DCYF filed an Emergency Motion to Change Placement on behalf of Sam and Tony. (See Exhibits D-18 and D-56). The motion was based, in part, on allegations that the children’s mother was using illegal drugs in the home. The Family Court authorized the removal of the children from their mother’s home on May 20, 2004. The Court also ordered that the children’s mother cooperate with in-patient substance abuse counseling. (See Exhibits D-19 and D-57). Further, the Court approved of DCYF’s case plan for Sam and Tony, and found that the permanency plan goal of reunification was appropriate and that DCYF had documented a compelling reason to continue efforts to work toward a case plan goal of reunification. Lastly, the Court ordered that DCYF shall not file a TPR petition at that point in time. (See Exhibits D-20 and D-58).
At the case review of February 3, 2005, the Court ordered DCYF to file a termination of parental rights petitions on behalf of Sam and Tony. The Court also ordered that DCYF continue to provide services to the children’s mother in an effort to pursue reunification with Sam and Tony. (See Exhibits D-21, D-22, and D-59).
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DCYF filed the Termination of Parental Rights petitions in October of 2005. (See Exhibits D-29 and D-63). During a pre-trial hearing on the petition for termination of parental right, a Family Court judge noted that the maternal grandparents were actively involved with Sam and Tony while in residential placement. (See Exhibits D-30 and D64). In February of 2006, the Court defaulted the father on the termination of parental rights petition. (See Exhibits D-31 and D-65). On July 6, 2006, DCYF withdrew the termination of parental rights petition as to the children’s mother on the condition that the she agreed to execute a direct consent adoption petition when Sam and Tony were placed in a pre-adoptive home. On that date, the Family Court also ordered that DCYF begin overnight visitation for Sam and Tony with their maternal grandparents. (See Exhibits D33 and D-67).
The Family Court conducted permanency hearings on DCYF’s child protective petitions involving Sam and Tony on July 6, 2006 and January 11, 2007. At the conclusion of the permanency hearings, the Family Court issued Orders that included a finding that the permanency goal of reunification was not appropriate and that the permanency goal of adoption or guardianship was an appropriate permanency goal for both children. Significantly, the Family Court found that DCYF was making reasonable efforts to finalize a permanency goal of adoption or guardianship on behalf of both Sam and Tony. (See Exhibits D-26, D-27, D-60, and D-61).
At present, the child welfare petitions filed by DCYF on behalf of Sam and Tony M. remain active before the Family Court. A permanency hearing is schedule for January 10, 2008. (See Exhibits D-27, D-28, D-61 and D-62). The DCYF continues to work
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toward effectuating a goal of integrating Sam and Tony into the home of the maternal grandparents under the supervision of the Family Court.
v. David T. In January of 1996, David T. was placed in the protective custody of DCYF by order of the Rhode Island Family Court. The placement was based, in part, upon documentation that David’s siblings had been removed from their mother’s care by authorities in Michigan and in Massachusetts based upon incidents of physical and sexual abuse involving her six other children and the fact that his mother was without adequate housing. (See Exhibits E-1 and E-2). On March 5, 1996 the Family Court issued an Order in which it concluded that there was probable cause to maintain David in the temporary custody of DCYF. (See Exhibit E-5 & E-6). Thereafter, on October 2, 1996, the Family Court issued an Order in which it found that David was neglected by his mother and committed him to the care custody and control of the of DCYF. (See Exhibit E-10 and E-11). The Family Court conducted a review of David’s case on November 14, 1996 and May 16, 1997. (See Exhibits E-12 and E-13). At the November 14, 1996 review, the Family Court ordered that DCYF could increase visitation between David and his mother to weekly. (See Exhibit E-12). On September 3, 1997, the Family Court granted the DCYF Motion to suspend visitation between David and his Mother. (See Exhibit E-16). In November of 1997, DCYF filed an involuntary termination of parental rights petition on behalf David T. (See Exhibit E-46). On April 2, 1998 the Family Court issued an Order granting the termination of parental rights petition and placing David in the legal guardianship of DCYF. (See Exhibits E-48 and E-49).
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Subsequent to April 2, 1998, the Family Court has continued to exercise jurisdiction over David’s case through the present time. In February 1999, the Family Court issued an Order authorizing David’s placement with a relative in Massachusetts. (See Exhibit E-19). Regrettably, David’s behavior became unmanageable and DCYF arranged placement for David into a residential program in Rhode Island. In July of 2000, the residential program discharged David due to an increase in aggressive behavior. Thereafter, David was admitted to Butler Hospital. In August of 2000, David’s Court Appointed Special Advocate filed a motion to review David’s placement. (See Exhibit E-53). The Motion was heard before the Court on August 29, 2000. (See Exhibit E-54). Following the August 29th hearing, the Family Court regularly reviewed DCYF’s efforts to facilitate residential placement referrals for David. The Family Court conducted reviews on David’s case on September 12, September 18 and October 10, 1999 for purposes of determining the status of placement referrals made by DCYF. (See Exhibits E-55, E-56, and E-57). On December 4, 2000, a Family Court judge noted on the Court disposition form that David was showing signs of institutionalization and as a result approved placement of David in an out of state residential placement. (See Exhibit E58).
Based upon the Family Court’s order to secure out of state placement, DCYF arranged for David to be placed in a residential program located in Fall River, Massachusetts. At the time of his admission, David was diagnosed with Oppositional Defiant Disorder, reactive Attachment Disorder, Euresis and Expressive Language Disorder. The Family Court conducted permanency hearings on David’s case in March, 2001, October 2001, and October of 2002. (See Exhibits E-24, E-25, and E29). At the
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conclusion of the October 2002 hearing, the Family Court issued an Order approving DCYF’s case plan agreement and found that DCYF has made reasonable efforts to finalize a permanency plan goal of adoption, guardianship or another planned living arrangement for David. (See Exhibit E-31).
David continued in the residential treatment program located in Fall River, Massachusetts until January of 2003. At that time, David was transferred to a more structured residential treatment program located in Lenox, Massachusetts. The Family Court conducted status court reviews of David’s case in January, July and October of 2003. (See Exhibits E-32, E-33, and E-34). During the Court reviews, DCYF reported on David’s status in the residential treatment program. In November of 2004, the Family Court conducted a permanency hearing on behalf of David. (See Exhibits E-69 and E36). At the hearing, the Family Court Justice approved DCYF’s new case plan. At the time, the Court noted that David was experiencing “severe problems” in residential treatment. (See Exhibits E-69 and E-36). The Court additionally found that DCYF had documented a reason why return home, adoption, guardianship or placement with a relative was not an appropriate permanency plan goal for David. The Court held that the goal of another planned living arrangement was the most appropriate permanency plan goal for David. Lastly, it held that DCYF had not made reasonable efforts to finalize the permanency plan goal of another planned alternative living arrangement. (See Exhibits E-37 and E-70.
In November of 2005, the Family Court conducted another permanency hearing on David’s case. (See Exhibits E-38 and E-71). Once again, the Family Court found that: DCYF had documented a reason why return home, adoption, guardianship or
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placement with a relative was not an appropriate permanency plan goal for David; the goal of another planned living arrangement was the most appropriate permanency plan goal in this case; and directed that DCYF provide the Court with information of the status of DCYF’s efforts to identify a new placement for Daniel. (See Exhibits E-39 and E-72). The case was continued to January 9, 2006 for review. On January 9, 2006, the Family Court ordered DCYF to arrange for an immediate independent assessment of David’s medication treatment. Additionally, the Court ordered that David’s Court Appointed Special Advocate investigate residential placement for David at a program named, Center Point. (See Exhibit E-73). On February 6, 2006, the Family Court noted on the Court disposition form that DCYF was awaiting approval from Massachusetts to place David at Merrimack Center. (See Exhibit E-74). The Court ordered DCYF to proceed with this placement forthwith. David was placed in the Merrimack Center program on March 14, 2006.A permanency hearing was held in the Family Court on November 27, 2006. (See Exhibit E-42). At the conclusion of this hearing, the Family Court issued an Order approving DCYF’s case plan. The Court found that DCYF had documented a reason why return home, adoption, guardianship or placement with a relative is not an appropriate permanency plan goal for David. Further, the Court held that the goal of another planned living arrangement was the most appropriate permanency plan goal for David and that DCYF had made reasonable efforts to finalize the permanency goal of another planned alternative living arrangement. (See Exhibit E-43). In addition, the Family Court Judge noted on the Court disposition form that David continued to be placed at Merrimack Center and that he was not enrolled in an educational component. The Judge further noted that DCYF was pursuing placement for Daniel at Swansea
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Woods or Meadow Ridge; two residential treatment programs located within
Massachusetts. (See Exhibit E-75). In June of 2007 DCYF reported to the Family Court
that David was placed in the Swansea Woods program on May 9, 2007. The Family
Court continued the case for a case review and permanency hearing of David’s case on
November 26, 2007. (See Exhibits E-45 and E-77).
B. Next Friends
Three individuals, Gregory C. Elliot, Katherine J. Collins and Mary Melvin have
filed this suit as the “next friend” of these children.
Gregory C. Elliot has filed this lawsuit as the “Next Friend” of siblings Sam and
Tony M., siblings Briana, Alexis, Clare, and Deanna H. and siblings Danny and Michael
B. Amended Complaint at ¶¶ 34, 82 and 96. The Amended Complaint represents that
Gregory C. Elliot is an:
Associate Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 24 years. Professor Elliot is a social psychologist, specializing in the social development of the individual. In his work he has dealt with issues of child maltreatment, and is currently writing a book on how adolescents come to believe that their lives matter to others.
Id. The Amended Complaint is devoid of any explanation why Associate Professor Elliot
is an appropriate “next friend” for any of the children named in the Amended Complaint.
Kathleen J. Collins is the “next friend” for Caesar S. See Amended Complaint at
¶ 55. The Amended Complaint represents that Ms. Collins:
has a Master of Science degree in School Psychology and a Bachelor of Arts degree in Psychology from the University of Rhode Island. For the past 17 years, Ms. Collins has worked in the Providence School Department as a school psychologist. Ms. Collins currently serves as the school psychologist for two elementary schools in Providence. She has known Caesar S. since he entered one of the schools in September 2006. MS. Collins resides in Foster, Rhode Island.
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Id. The Amended Complaint is devoid of any specific interaction or relationship between Ms. Collins and Caesar other than she works at a school the child attends.
Mary Melvin is the “next friend” of David T. See Amended Complaint at ¶69. The Amended Complaint represents that:
Ms. Melvin currently works as a Senior Companion in the Senior Companion Program at the Department of Elderly Affairs in Cranston, Rhode Island. Previously Ms. Melvin worked for many years at a nursing home for the elderly and handicapped in Providence, Rhode Island. Ms. Melvin served as a foster parent for at least 25 children in Rhode Island’s foster care system over a 20-year period. In 1993 and 1997, she received the Rhode Island Foster Parent of the Year Award. Ms. Melvin was a foster parent to David T. from 1996 to 1998, and she continued to be a resource for him after he left her care. Ms. Melvin resides in North Providence, Rhode Island. Id. The Amended Complaint is devoid of specific information regarding any relationship between Ms. Melvin and David T. after 1998 other than the abstract assertion that she was a “resource.” B. The Department of Children Youth and Families and The Rhode Island Family Court It is the policy of the State of Rhode Island “to protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the mandatory reporting of known or suspected child abuse and neglect, investigation of those reports by a social agency, and provision of services, where needed, to the child and family.” R.I. Gen. Laws §40-11-1. Indeed, the enabling legislation of the Family Court identifies the primary function of the Court to ensure that “…families whose unity or well-being is threatened
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shall be assisted and protected, and restored, if possible, as secure units of law-abiding members; that each child coming within the jurisdiction of the family court shall receive the care, guidance and control which will conduce to his or her welfare and the best interests of the state; and that when a child is removed from the control of his or her parents, the family court shall secure for him or her care as nearly as possible equivalent to that which his or her parents should have given him or her.” R.I. Gen. Laws § 8-10-2. The Department of Children, Youth and Families is required to process its child protective petitions within the Family Court system for purposes of seeking to ensure the health and welfare of abused and neglected children are adequately protected under the law.
Plaintiffs in this action seek certification of the following class of children: All children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect. Amended Complaint ¶11. The very definition and reference to “legal custody” necessarily invokes the authority, review and approval of the Rhode Island Family Court. The plaintiffs’ allegations regarding DCYF’s inadequacies in areas of placement of children, termination of parental rights, visitation with family, individual plans, etc. are not recommendations or decisions unfettered by judicial review and approval. On the contrary, each such decision as was done in this case, is subject to Family Court review with the benefit of an independent review by (at a minimum) a CASA attorney or guardian ad litem who represent only the best interests of the child. Moreover, the Child Advocate by statute and case law is an “appropriate person” to raise concerns to the Family Court regarding children who are alleged to be abused or negelected. R.I. Gen.
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Laws §42-73-7(8). See also In re: R.J.P., 445 A.2d 286 (R.I.1982). It is beyond argument
that the Child Advocate has a responsibility to raise issues as alleged herein with the
Family Court. Yet to date, she has never done so on behalf of any named party to this
action.
In asking this Honorable Court to dismiss this Complaint based upon the Younger
and Rooker-Feldman abstention doctrines, it is only fair to provide a review of the
statutory authority that grants the Family Court’s active oversight and involvement in the
decisions affecting the lives of abused and neglected children.
i. Jurisdiction of the Rhode Island Family Court
The Rhode Island Family Court has exclusive original jurisdiction in proceedings:
(1) Concerning any child residing or being within the state who is: (i) delinquent; (ii) wayward; (iii) dependent; (iv) neglected; or (v) mentally disabled, except that any person aged seventeen (17) years of age or older who is charged with a delinquent offense involving murder, first degree sexual assault, or assault with intent to commit murder shall not be subject to the jurisdiction of the family court if, after a hearing, the family court determines that probable cause exists to believe that the offense charged has been committed and that the person charged has committed the offense. The family court shall conduct a hearing within ten (10) days of the arraignment on the charge(s), unless the time for the hearing is extended by the court for good cause shown;
(2) Concerning adoption of children;
(3) To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support and disposition of that child in case that child or its mother has residence within the state;
(4) Relating to child marriages, as prescribed by §15-2-11; and
(5) Referred to the court in accordance with the provisions of §14-1-28.
Emphasis Added. R.I. Gen. Laws § 14-1-5. The Rhode Island Family Court describes
itself as:
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… being created to focus special attention on individual and social problems concerning families and children. Consequently, its goals are to assist, to protect, and if possible, to restore families whose unity or wellbeing is threatened.
…being charged with assuring that children within its jurisdiction receive care, guidance and control conducive to their welfare and the best interest of the state. Additionally, if children are removed from the control of their parents the court seeks to secure care equivalent to that which their parents should have provided.
***
…[having] jurisdiction over matters relating to delinquent, wayward, dependent, neglected, abused, or mentally deficient or mentally disordered children. In addition, it has jurisdiction over adoptions, child marriages, paternity proceedings, and a number of other matters involving domestic relations and juveniles.
Appeals from decisions of the Family Court are taken directly to the state Supreme Court.
http:// www.courts.state.ri.us/family/overview.htm.
ii. Temporary Custody of Children Who Are Suspected of Being Abused or Neglected
a. Emergency Hold
A child who is suspected of being abused or neglected may be removed from his
or her parents’/guardians’ custody for a period of forty-eight (48) to seventy-two (72)
hours without a Family Court Order. R.I. Gen. Laws § 40-11-5 permits:
(a) Any physician or duly certified registered nurse practitioner treating a child who has suffered physical injury that appears to have been caused by other than accidental means or a child suffering from malnutrition or sexual molestation shall have the right to keep the child in the custody of a hospital or any licensed child care center or facility for no longer than seventy-two (72) hours, with or without the consent of the child's parents or guardian, pending the filing of an ex-parte petition to the family court. The expense for that temporary care shall be paid by the parents or legal guardian of the child or, if they are unable to pay, by the department.
(b) Any police or law enforcement officer may take a child into protective
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custody without the consent of the parents, or others exercising control over the child.
(c) If the officer has reasonable cause to believe that there exists an imminent danger to the child's life or health, unless he or she is taken into protective custody, the officer shall immediately notify, and place the child with the director of the department of children, youth, and families or his or her designated agent who shall care for the child; provided, however, that no child may be detained in protective custody longer than forty-eight (48) hours without the express approval of a justice of the family court.
(d) Any child protective investigator or social caseworker II employed by the department, may take a child into temporary protective custody without the consent of his or her parent or other person responsible for the welfare of the child, if the investigator or social caseworker II has reasonable cause to believe that the child or his or her sibling has been abused and/or neglected and that continued care of the child by his or her parent or other person responsible for the child's welfare will result in imminent further harm to the child. The investigator or social caseworker II shall have the child examined by a licensed physician or duly certified registered nurse practitioner within twenty-four (24) hours in accordance with the provisions of § 40-11-6(c) and provide further that the child shall not be detained in protective custody longer than forty-eight (48) hours without the expressed approval of a justice of the family court.
However, if the Family Court does not render an order on custody before the conclusion
of the respective forty-eight (48) hour or seventy-two (72) hour holds, then custody
terminates and the child is to be returned to his or her parents, guardian or caretaker.
b. Reports of Abuse or Neglect
DCYF receives initial reports of children who are suspected as suffering abuse or
neglect from many different sources.3 See R.I. Gen. Laws §§ 40-11-3, 40-11-5, 40-11-6,
40-11-9, etc. DCYF investigates each report to determine the circumstances surrounding
the alleged abuse or neglect and the cause thereof. R.I. Gen. Laws §40-11-7(a). If, after
3 The State Defendants will not go into an in-depth review of all the different sources that it receives reports of abuse and neglect from in this pleading. .
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conducting an investigation, DCYF believes the child is or has been abused or neglected4
there are two (2) courses of action: (1) if the “circumstances of the child’s family or
otherwise do not require the removal of the child for his or her protection, …[DCYF]
may allow the child to remain at home and shall petition the family court for an order for
4 R.I. Gen. Laws §40-11-2(1) defines an "Abused and/or neglected child" as “a child whose physical or mental health or welfare is harmed or threatened with harm when his or her parent or other person responsible for his or her welfare:
(i) Inflicts or allows to be inflicted upon the child physical or mental injury, including excessive corporal punishment; or (ii) Creates or allows to be created a substantial risk of physical or mental injury to the child, including excessive corporal punishment; or (iii) Commits or allows to be committed, against the child, an act of sexual abuse; or (iv) Fails to supply the child with adequate food, clothing, shelter, or medical care, though financially able to do so or offered financial or other reasonable means to do so; or (v) Fails to provide the child with a minimum degree of care or proper supervision or guardianship because of his or her unwillingness or inability to do so by situations or conditions such as, but not limited to, social problems, mental incompetency, or the use of a drug, drugs, or alcohol to the extent that the parent or other person responsible for the child's welfare loses his or her ability or is unwilling to properly care for the child; or (vi) Abandons or deserts the child; or (vii) Sexually exploits the child in that the person allows, permits or encourages the child to engage in prostitution as defined by the provisions in § 11-34-1 et seq., entitled "Prostitution and Lewdness"; or (viii) Sexually exploits the child in that the person allows, permits, encourages or engages in the obscene or pornographic photographing, filming or depiction of the child in a setting which taken as a whole suggests to the average person that the child is about to engage in or has engaged in, any sexual act, or which depicts any such child under eighteen (18) years of age, performing sodomy, oral copulation, sexual intercourse, masturbation, or bestiality; or (ix) Commits or allows to be committed any sexual offense against the child as such sexual offenses are defined by the provisions of chapter 37 of title 11, entitled "Sexual Assault", as amended; or (x) Commits or allows to be committed against any child an act involving sexual penetration or sexual contact if the child is under fifteen (15) years of age; or if the child is fifteen (15) years or older, and (1) force or coercion is used by the perpetrator, or (2) the perpetrator knows or has reason to know that the victim is a severely impaired person as defined by the provisions of § 11-5-11, or physically helpless as defined by the provisions of § 11-37-6. “
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the provision of treatment of the family and child” or (2) DCYF may “petition the family court for removal of the child from the care and custody of the parents, or any other person having custody or care of the child in cases where it is felt that a particular child has suffered abuse or neglect that continued care and custody by that person might result in further harm to the child.” R.I. Gen. Laws §40-11-7 (b) and (c). Emphasis added. Either course requires the Family Court’s involvement and approval of DCYF’s proposed course of action for the child. Either course is subject to review by the Child Advocate and, if she believes it to be inappropriate, intervention by her in Family Court. Again, no such challenge was ever raised by the Child Advocate in any of these cases.
iii. The Family Court’s Obligations to Children Suspected of Being Abused or Neglected Upon the Filing of an Ex Parte Petition
Upon the filing of an ex parte petition, which identifies the specific facts surrounding the allegations of the abuse or neglect suffered by the child, it is the Family Court, not DCYF, that is statutorily obligated to make decisions and enter court orders regarding the custody and placement of a child suspected of being abused or neglected. R.I. Gen. Laws 40-11-7.1(a) requires that:
The family court shall, upon the filing of an ex parte petition, hereunder, immediately take any action it deems necessary or appropriate for the protection of the child, or children, suspected of being abused or neglected, including the removal of the child, or children, from the custody of the parent or parents, or other person suspected of the abuse or neglect.
A hearing before the Family Court must commence within seven (7) days of filing the petition. R.I. Gen. Laws §40-11-7.1(b). At this initial hearing the Family Court has a minimum of eight obligations for the child. It must, at the very least:
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(1) Advise the parent or parents or other person having care of the child of the allegations contained in the petition;
(2) Enter either a denial or admission of the allegations contained in the petition;
(3) Assure that a guardian ad litem and/or a court appointed special advocate has been appointed to represent the child;
(4) Appoint an attorney to represent the parent or parents or any other person having care of the child alleged to have abused or neglected a child when the parent or custodian is unable to afford representation, as determined by the court;
(5) Advise the parent or parents or any other person having care of the child of his or her right to a probable cause hearing on the ex parte petition to be held as soon as practicable but no later than ten (10) days from the date of the request;
(6) Make inquiry of the mother of the child to determine the identity of the biological father of the child, if necessary;
(7) In the event that a person named as a putative father appears and denies that he is the biological father of the child, the court shall direct that any such putative father execute a written denial of paternity setting forth the implications of such denial in a form to be adopted by the family court in accordance with the provisions of this section. Execution of such a document by the putative father shall constitute prima facie evidence of his denial of paternity. Upon execution of the denial of paternity form, the court shall find that the department has no duty to make reasonable efforts to strengthen and encourage the relationship between the child and that putative father and the lack of such efforts may not be cited for any purpose by the putative father in any future proceeding conducted pursuant to the provisions of this chapter, the provisions of title 15 chapter 7 or title 15 chapter 8;
(8) Make any interim orders in its discretion respecting the rights of the child.
R.I. Gen. Laws §40-11-7.1(b).
The Family Court also has the authority, with the consent of the parties, to refer
the child protection issue to mediation. R.I. Gen. Laws § 40-11-7.3.
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iv. Legal Representation for the Child The Family Court is statutorily required to appoint legal representation for a child when a petition has been filed alleging abuse or neglect. R.I. Gen. Laws §§40-11-7.1(b) and 40-11-14. The guardian ad litem or court-appointed special advocate (“CASA”) represents solely the child and advocates for his/her best interest at every court hearing. Once the court appoints a guardian ad litem or CASA attorney to represent the child’s best interest in court proceedings that representation continues until an adoption petition is granted. In re Christina D., 525 A.2d 1306 (RI 1987). The Court Appointed Special Advocate (“CASA”) was developed “as a volunteer program by the Family Court in 1978 in answer to the need for advocacy for those children who had been abused and/or neglected, and who, through no fault of their own, found themselves involved with the Department of Children, Youth and Families and the Rhode Island Family Court.” http://www.courts.state.ri.us/family/casa.htm. “Since its inception, CASA has grown from a solely volunteer-based program to a fully-staffed program that includes full-time staff attorney Guardians ad litem and social workers who work in conjunction with the volunteers to provide effective advocacy for the best interest of Rhode Island’s most vulnerable children. CASA tries to insure that these children do not “fall through the cracks” of the system that is put in place to help them.” Id. Each of the named plaintiffs has a court-appointed guardian ad litem or CASA attorney to represent their best interests before the Family Court.
v. Family Court Adjudication If, after a hearing, the Family Court finds the child is abused or neglected it shall
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by a formal decree:
(b) Place the child under the supervision of the department in his or her own home if the court makes a determination that the child will be safely maintained in the home or award the care, custody, and control of the child to the department upon such terms as the court shall determine. The court may place the custody of the child in the department until such time as it finds that the child may be returned to the parents or other person previously having custody or care of the child under circumstances consistent with the child's safety.
(c) The court may require the parent or person previously having custody to undertake a program of counseling, including psychiatric evaluation and/or treatment as a prerequisite to the return of the child to his or her custody.
(d) When a child has been placed in the care, custody and control of the department pursuant to the provisions of this chapter or of chapter 1 of title 14 the court shall have the power to appoint a guardian of the person of the child.
(e) No petition for guardianship shall be granted unless it contains the written consent of the parent or parents previously having custody of the child and of the department of children, youth and families.
(f) The entry of a decree of guardianship pursuant to this section shall terminate the award of custody to the department and the involvement of the department with the child and the child's parents. The court may revoke a guardianship awarded pursuant to this section if the court finds after a hearing on a motion for revocation that continuation of said guardianship is not in the best interests of the child.
(g) Notice of any hearing on such motion shall be provided by the moving party to the department of children, youth and families, the court appointed special advocate, the parent or guardian and any and all other interested parties.
R.I. Gen. Laws §40-11-12. See also RIGL 14-1-32 and 14-1 34. This process does not
occur at a one time hearing before the Family Court. Thus, as the case comes before the
Family Court prior to entry of this formal decree, the Family Court reviews specific
information related to the child (i.e. placement, treatment, services, etc.) and addresses
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any issues that may have arisen in the interim whether raised by DCYF, the CASA attorney or guardian ad litem and/or the Child Advocate.
Moreover, after the Family Court rules that the child is abused or neglected and it is not in the best interest of the child to be returned to the custody of their parent or other person having custody, “the court shall direct … [DCYF] to sumit within thirty (30) days a written plan for care and treatment… .The court shall thereupon approve or modify such plan, or shall remand the plan to …[DCYF] for further development or resubmission.” Rhode Island Family Court Rules of Juvenile Proceedins Rule 17. Upon approval of this individualized plan, the Court shall direct DCYF to “review such plan and report thereon to the court not later than six (6) months thereafter.” Id.
vi. The Family Court’s Review of Reunification and Case Plan Although DCYF may draft a case plan that addresses the placement and needs of a child found to be abused or neglected, they do not have unfettered discretion and authority. At every regularly scheduled Family Court Review and/or dispositional hearing of a child found to be abused or neglected, DCYF must provide a written reunification or permanency plan for the Family Court’s review and approval. R.I. Gen. Laws §40-11-12.2(a). The Court is provided with information concerning when, if appropriate, the child will be returned to the parent, placed for adoption, referred for legal guardianship or placed with a fit and willing relative. Id. If such placements are inappropriate because of the specific facts of the child’s case – DCYF must, by statute, provide compelling reasons why such placements or referrals are not in the child’s best interest. Id. The Family Court will review and consider another planned permanent living arrangement. Id. “The plan shall clearly set forth the goals and obligations of the
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department, parent(s), child and all other parties.” Id. The Family Court, at its discretion, may approve or modify the proposed plan. R.I. Gen. Laws §40-11-12.2(a). This plan will be incorporated into the orders of the Family Court. Id. Again, the Child Advocate has full access to this information and has the ability, if not the obligation, to advise the Family Court of any alleged shortcomings in the Department’s plan. To date she has not done so for any named plaintiff.
The Family Court is required to consider the child’s health and safety to be the paramount concern when determining “reasonable efforts to be made with respect to a child”. R.I. Gen. Laws §40-11-12.2(b). “[R]easonable efforts shall me made to preserve and reunify families: (i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home - which efforts shall include placement of the child with a blood relative or other family member if such placement is in the best interest of the child; and (ii) to make it possible for a child to safely return to the child's home. R.I. Gen. Laws §40-11-12.2(c). While such efforts are underway, reasonable efforts may be simultaneously made to place the child for adoption or with a legal guardian. R.I. Gen. Laws §40-11-12.2(g).
The Family Court may rule that “reasonable efforts” for reunification need not be expended if it has determined that:
(i) the parent has subjected any child to conduct of a cruel or abusive nature; (ii) The parent has:
(I) committed murder of another child of the parent; or (II) subjected the child to aggravating circumstances, which circumstances shall be abandonment, torture, chronic abuse and sexual abuse; or
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(III) committed voluntary manslaughter of another child of the parent; or (IV) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or (V) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or (iii) the parental rights of the parent to a sibling have been terminated involuntarily. R.I. Gen. Laws §40-11-12.2(e). If the Family Court determines that “reasonable efforts” for reunification are not necessary, a permanency hearing should commence within thirty (30) days. R.I. Gen. Laws §40-11-12.2(f). If the permanency plan for a child is adoption or placement in another permanent home, DCYF must provide the Family Court with documentation describing: “the steps …[DCYF] is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship.” R.I. Gen. Laws §40-11-12.2(h).
vii. Permanency Hearing The Family Court also has the responsibility to conduct a permanency hearing. R.I. Gen. Laws §40-11-12.1 This hearing occurs within a period of twelve (12) months after a child has been placed in the care of DCYF and the child has resided in foster care or an out-of-home program. R.I. Gen. Laws §40-11-12.1(a). DCYF provides notice of this hearing to the foster parents, any pre-adoptive parent or relative providing care for the child, so that they may attend the hearing and present a report to the Court, including any recommendations that may be in the best interest of the child. R.I. Gen. Laws §40-
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11-12.1(c). In determining an order of permanency, the Family Court shall consider, in
addition to other relevant factors:
(1) The appropriateness of the department's plan for service to the child and parent;
(2) What services have been offered to strengthen and reunite the family;
(3) Where return home of the child is not likely, what efforts have been or should be made to evaluate or plan for other modes of care;
(4) Any further efforts which have been or will be made to promote the best interests of the child; and
(5) The child's health and safety shall be the paramount concern.
R.I. Gen. Laws §40-11-12.1(d). At the conclusion, the Family Court enters, in
accordance with the best interest of the child, an order of permanency:
(1) In the case of a child whose care and custody have been transferred to the department of children, youth and families, direct that the child be returned to and safety maintained in the home of the parent, guardian, or relative; or
(2) Direct that the child's placement in foster care continue on a long-term basis or that the child be placed in an independent living facility; or
(3) Direct that foster care of the child and reunification efforts be continued if the department of children, youth, and families, after a hearing, has demonstrated to the court that continuation of the child in foster care and continued reunification efforts for a determinate period is in the child's best interests. If the court does not return the child to the care and custody of the parent, guardian or relative and the court does not direct that foster care of the child and reunification efforts be continued, the department shall institute a proceeding within thirty (30) days of the permanency hearing pursuant to chapter 7 of title 15 to legally free the child for adoption; or
(4) In the case of a child with an emotional, behavioral, or mental disorder or developmental or physical disability who has, pursuant solely to §§ 4272-14 and 14-1-11.1, been placed in an out-of-home program which provides services for children with disabilities, including, but not limited to, residential treatment programs, residential counseling centers, and therapeutic foster care programs, shall determine whether the continuation
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of such placement is in the best interest of the child; or
(5) For a child who has been placed in foster care by the department for a period of twelve (12) consecutive months, the court shall order that the department institute proceedings for adoption of the child except in the event that the court determines it is not in the best interest of the child due to one or more of the following factors:
(i) There is a substantial probability that the child shall be returned to the parent within the next three (3) months; or
(ii) The parent has maintained regular and consistent visitation and contact with the child, there is a relationship that is beneficial to the child, and there is a substantial probability that the child shall be returned to the parent within the next three (3) months; or
(iii) The child is in the care of a relative and the relative is not willing to adopt the child but is willing and capable of providing the child with a stable and permanent environment; or
(iv) Any other significant factor, which the court finds would not be in the best interest of the child. (v) The department has documented in the case plan, which shall be presented to the court, a compelling reason for determining that filing a petition for termination of parental rights and a petition for adoption would not be in the best interests of the child; or
(vi) The department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made.
(6) In the case of a child who has been in foster care under the temporary custody or custody of the department for fifteen (15) of the most recent twenty-two (22) months, or if the court has determined a child to be abandoned or has made a determination that the parent has engaged in conduct toward any child of a cruel and abusive nature or that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the department shall file a petition to terminate the parental rights of the child's parents, and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless:
(i) the child is being cared for by a relative;
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(ii) the department has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or (iii) the department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child; or R.I. Gen. Laws §40-11-12.1(e). The Family Court maintains jurisdiction in the case of children who continue to be in foster care or out-of-home programs. R.I. Gen. Laws §4011-12.1(f). The Family Court must conduct a further permanency hearing whenever it deems desirable or necessary but not less than at least every twelve (12) months. “Each child continued in foster care shall be afforded a permanency hearing not less frequently than every twelve (12) months during the continuation of foster care, which hearing shall determine the permanency plan for the child that includes whether, and if applicable when, the child will be returned to the parent or placed for adoption with the state filing a petition for termination of parental rights, or referred for legal guardianship, or that the child be placed in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, or be referred for termination of parental rights, or be placed for adoption, or be placed with a fit and willing relative, or with a legal guardian.” R.I. Gen. Laws § 40-11-12.1(g). Again, the Child Advocate has full access to this information and has the ability, if not the obligation to advise the Family Court of any alleged shortcomings in the proposal.
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viii. Termination of Parental Rights
In appropriate circumstances the DCYF may file a petition with the Rhode Island
Family Court to terminate the legal rights of a parent to the child. R.I. Gen. Laws § 15-7-
7. The Family Court shall conduct a hearing. Id. If the Family Court determines, by a
standard of clear and convincing evidence that:
(1) The parent has willfully neglected to provide proper care and maintenance for the child for a period of at least one year where financially able to do so. In determining whether the parent has willfully neglected to provide proper care and maintenance for the child, the court may disregard contributions to support which are of an infrequent and insubstantial nature; or
(2) The parent is unfit by reason of conduct or conditions seriously detrimental to the child5; such as, but not limited to, the following:
5 This includes but is not limited to the following situations: (i) Institutionalization of the parent, including imprisonment, for a duration as to render it improbable for the parent to care for the child for an extended period of time; (ii) Conduct toward any child of a cruel or abusive nature; (iii) The child has been placed in the legal custody or care of the department for children, youth, and families and the parent has a chronic substance abuse problem and the parent's prognosis indicates that the child will not be able to return to the custody of the parent within a reasonable period of time, considering the child's age and the need for a permanent home. The fact that a parent has been unable to provide care for a child for a period of twelve (12) months due to substance abuse shall constitute prima facie evidence of a chronic substance abuse problem; (iv) The child has been placed with the department for children, youth, and families and the court has previously involuntarily terminated parental rights to another child of the parent and the parent continues to lack the ability or willingness to respond to services which would rehabilitate the parent and provided further that the court finds it is improbable that an additional period of services would result in reunification within a reasonable period of time considering the child's age and the need for a permanent home; (v) The parent has subjected the child to aggravated circumstances, which circumstances shall be abandonment, torture, chronic abuse and sexual abuse; (vi) The parent has committed murder or voluntary manslaughter on another of his or her children or has committed a felony assault resulting in serious bodily injury on that child or another of his or her children or has aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter; or (vii) The parent has exhibited behavior or conduct that is seriously detrimental to the child, for a duration as to render it improbable for the parent to care for the child for an
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(3) The child has been placed in the legal custody or care of the department for children, youth, and families for at least twelve (12) months, and the parents were offered or received services to correct the situation which led to the child being placed; provided, that there is not a substantial probability that the child will be able to return safely to the parents' care within a reasonable period of time considering the child's age and the need for a permanent home; or
(4) The parent has abandoned or deserted the child. A lack of communication or contact with the child for at least a six (6) month period shall constitute prima facie evidence of abandonment or desertion. In the event that parents of an infant have had no contact or communication with the infant for a period of six (6) months the department shall file a petition pursuant to this section and the family court shall conduct expedited hearings on the petition.
It may grant the petition and terminate the legal rights of the parent. R.I. Gen. Laws § 15-
7-7. In considering whether to legally terminate the child-parent relationship, the Family
Court shall consider “the physical, psychological, mental, and intellectual needs of the
child. R.I. Gen. Laws § 17-7-7(c)(1). The Family Court’s jurisdiction over this child
does not end upon entry of a decree terminating parental rights.
If the Family Court enters an order terminating the parental rights of a child and
“the child has not been placed by the agency in the home of a person or persons with the
intention of adopting the child within thirty (30) days from the date of the final
termination decree, the family court shall review the status of the child.” R.I. Gen. Laws
§ 15-7-7. See also In re: David L., 877 A.2d 667 (RI 2005). DCYF must provide the
Family Court with a “report that documents the steps the agency is taking to find an
adoptive family or other permanent living arrangement for the child, to place the child
with an adoptive family, a fit and willing relative, a legal guardian, or in another planned
permanent living arrangement, and to finalize the adoption or legal guardianship. At a
extended period of time;
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minimum, this documentation shall include child specific recruitment efforts, such as the use of state, regional and national adoption exchanges, including electronic exchange system.” Id. Again, the child Advocate has full access to this information and has the ability, if not the obligation, to advise Family Court of any alleged shortcomings in the proposal.
ix. Child Advocate Office The Rhode Island Office of the Child Advocate is created by state law. R.I. Gen. Laws §42-73-1. The Child Advocate has access to information, “including the right to inspect, copy and/or subpoena records held by the clerk of the family court, law enforcement, agencies, and institutions, public or private, and other agencies, or persons with whom a particular child has been either voluntarily or otherwise placed for care, or has received treatment within or without the state. R.I. Gen. Laws § 42-73-9. The Child Advocate has access to DCYF records concerning: (1) the names of all children in protective services, treatment, or other programs under the jurisdiction of DCYF, and their location if in custody; (2) all written reports of child abuse and neglect; and (3) all current records required to be maintained under the provisions of § 42-72-1 et seq. R.I. Gen. Laws § 42-73-8. The Child Advocate has the duty to review orders of the Family Court relating to juveniles with power to request reviews as required by the best interests of the child. R.I. Gen. Laws § 42-73-7(8). She is also considered an appropriate person under Rhode Island General Laws §§ 14-1-10 and 14-1-11, to bring information to the Family Court to initiate a preliminary investigation or file a petition alleging a child is dependent, abuse and/or neglected. In re R. J. P., 445 A.2d 286 (1982). R.I. Gen. Laws § 8-10-2.
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The Rhode Island State Legislature provided that certain “appropriate persons”
are designated as having the authority to bring information to the Rhode Island Family
Court or to file petitions alleging a child to be dependent abused and/or neglected. R.I.
Gen. Laws § 14-1-10. The Statute specifically provides that:
(e)xcept in case of emergency detention, whenever any appropriate person shall give to the court information in his or her possession that a child is within the provisions of this chapter, it shall be the duty of the court to make a preliminary investigation to determine whether the interests of the public or of the child require that further action be taken, and to report its findings together with a statement of the facts to the judge. The inquiry may include a preliminary investigation of the home and environmental situation of the child, his or her previous history, and the circumstances which were the subject of the information. To avoid duplication of effort and to take full advantage of all existing facilities, the report of any public agency, or of any private social agency licensed by the department of children, youth, and families, may be accepted by the court as sufficient evidence for the filing of a petition.
R.I. Gen. Laws § 14-1-10.
In In re R. J. P, the Rhode Island Supreme Court held that although the Child
Advocate is not specifically listed by designation in the statutory definition of an
“appropriate person”, he/she is the head of an agency that meets the requirements set
forth in Rhode Island General Laws section 14-1-3(1)(5). The Statute defines
“appropriate persons” to include “(a)ny duly authorized representative of any public or
duly licensed private agency or institution established for purposes similar to…” the
statutory purpose contained in Rhode Island General Laws section 8-10-2.
As the Child Advocate is required by statute “(t)o take all possible action …to
secure and ensure the legal, civil and special rights of children…” independently of
DCYF. The Rhode Island Supreme Court found that the Child Advocate has the
statutory authority and duty to act as an “appropriate person” and bring information and
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formal legal action on behalf of children before the Rhode Island Family Court. In re R.J.P., 445 A.2d at 287, 288; R.I. Gen. Laws § 42-73-7(6).
Despite her statutory mandates, duties and broad authority to report problems and issues concerning Rhode Island children, the Child Advocate has failed to intervene in the pending Family Court matters for any of the children listed in her Amended Complaint. The Child Advocate has an affirmative statutory duty to intervene in their pending Family Court actions and bring to the Court’s attention those facts and circumstances which supported the allegations and conclusions contained in the Amended Complaint if she believed they merited judicial intervention. The Child Advocate has never informed the Family Court of her claim that there does not exist an appropriate permanency plans for the Plaintiffs. Further the Child Advocate has failed to apprise the Family Court of her alleged concerns regarding the safety of children placed in overcrowded and unlicensed and/or unsuitable foster homes.
On July 9, 2007, DCYF Executive Legal Counsel Kevin Aucoin contacted the Child Advocate specifically instructing her to exercise her statutory authority and intervene in pending Family Court matters concerning three of the Plaintiffs who she alleges are in “constant jeopardy.” See Exhibit F-1. Attorney Aucoin further requested that in the alternative Ms. Alston provide DCYF with a written report that DCYF would forward to the Family Court for consideration. In correspondence dated July 9, 2007, Ms. Alston responded to Attorney Aucoin’s requests and declined to act upon her statutory duties and mandates by intervening in pending Family Court matters. Ms. Alston declined to report to the court serious allegations about the health and safety of children in state custody and specifically stated that:
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…the Child Advocate recognizes the Family Court’s authority to make decisions in individual cases and we will not interfere with the Court’s decision-making process. Based upon the information that the Department of Children, Youth and Families has access to review, the Office of the Child Advocate would assert that it is your executive duty to make appropriate decisions regarding the children’s permanency and safety as well as to fully inform the court and the children’s CASA attorney of the housing situation as it currently exists at the proposed placement; and any danger that may be presented by individuals living in the home of the maternal aunt as noted in the records maintained by the Department. See Exhibit F-2. The Child Advocate is one of the attorneys representing the ten (10) plaintiff children in this lawsuit. Despite making claims that each of these children have suffered abuse and reside in “constant jeopardy” or are languishing while in the care of DCYF, there is no indication or representation that Child Advocate Alston ever questioned any decision by DCYF or the Family Court related to these children or that she appeared at any of the Family Court hearings and made any concerns known to the Family Court justice presiding over any of these cases. Moreover, when asked to do so by DCYF legal counsel, she declined. It appears that Child Advocate Alston has abdicated her statutory authority to intervene in pending Family Court proceedings in these cases and is deferring to DCYF with the review and authority of the Family Court to make decisions regarding the placement and permanency needs of these children.
x. State Case Law The Rhode Island Supreme Court has repeatedly recognized the Family Court’s authority to issue orders in the best interest of the child. In In re: Carlos F., 849 A.2d 364 (RI 2004) the Family Court ordered that the children should remain in their current placements rather than be placed with the maternal grandmother. DCYF became involved with children Carlos and Neisha when
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they were with their mother Luzcelina Feliciano (“Feliciano”) was arrested and charged with possession of heroin with intent to deliver. 849 A.2d at 365. After entering a nolo contendere plea to the charge, Feliciano was sentenced to six (6) months to serve at the Adult Correctional Institution (“ACI”). Id. Carlos and Neisha were placed in the custody of DCYF. Sometime later, Feliciano informed the DCYF caseworker that she had three (3) other children who were being cared for by a friend. Id. Feliciano reclaimed these children upon her release from the ACI. Id. The Family Court ultimately removed the three (3) children from Feliciano’s custody after she refused to cooperate with substance abuse treatment. Id.
Feliciano identified her mother, Mildred Vargas, as a possible caretaker of the five (5) children. Id. Before seriously entertaining the idea of placing the children with the maternal Grandmother – Vargas, a home study relative to the suitability of Vargas and the conditions of her home were necessary through the Interstate Compact on Placement of Children (“ICPC”). Id. Although the DCYF caseworker made the request of the social service agency in Puerto Rico and subsequently followed up on the status of the home study, the Puerto Rican authorities never forwarded DCYF a completed report. Id.
The Family Court ultimately terminated Feliciano’s parental rights as she failed to complete a single substance abuse treatment program and repeatedly missed scheduled visits with her children. Id. The Family Court rejected Feliciano’s argument that R.I. Gen. Laws §14-1-2 and the “codified public policy of this state *** to conserve and strengthen the child’s family ties wherever possible” supported the placement of the children with their Grandmother Vargas. Id. at 366. The trial court found that the
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evidence Feliciano presented in support of placement with Vargas was insufficient to sustain her burden of proof. Id. The Rhode Island Supreme Court ruled that [t]he trial justice acted within his discretion in determining that the best interest of the children would be served by enabling them to remain in their respective placements in the stable and familiar pre-adoptive homes in which they were residing.” Id. at 366-367.
In In re: Christina V., 749 A.2d 1105, 1107 (RI 2000), the Family Court in granting the petition to terminate parental rights expressly found that DCYF had made reasonable efforts to reunite Christina with her parents. The Rhode Island Supreme Court repeatedly acknowledges in this decision the Family Court’s authority to enter orders regarding placement, counseling of parents, etc. that are in the best interest of the child.
In Engelhardt v. Bergeron, 113 R.I. 50, 317 A.2d 877 (1974), the Rhode Island Supreme Court affirmed the Family Court’s award of custody to the children’s aunt and uncle. The children came to live with their aunt and Uncle, Eveline and Paul Engelhardt, after their mother was murdered. 113 R.I. at 52, 317 A.2d at 879. The children’s father was charged with this crime but released on bail pending a trial. Id. Bergeron, the children’s father, objected to the Engelhardts’ petition for custody of the children claiming that as their natural father he was entitled to full custody of the children. Id. After a hearing, the Family Court awarded custody of the children to the aunt and uncle. Bergeron claimed that the Family Court exceeded its authority in awarding custody of his children to the Engelhardts. Id.
The Rhode Island Supreme Court rejected Bergeron’s arguments. 113 R.I. at 53, 317 A.2d at 880. The RI Supreme Court stated that the Family Court had authority to award custody of children determined to be abused or neglected under R.I. Gen. Laws,
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§14-1-32 to some appropriate agency. 113 R.I. at 54-55, 317 A.2d at 880-881. The RI
Supreme Court reasoned that “[I]n such cases, the Family Court stands in loco parentis,
charged by the Legislature with the responsibility of placing children who come within
its protection in the custody of a person or agency qualified to provide them with the care
and consideration they should have received from their parents.” I113 R.I. at 55, 317
A.2d at 881.
In Carr v. Prader, 725 A.2d 291 (R.I. 1999) the Rhode Island Supreme Court
ruled that the Family Court and not a probate court was the appropriate judicial body to
decide a petition of guardianship that is opposed by a parent. The Carr Court explained
that:
The Family Court is likewise “ a statutory tribunal possessing only such jurisdiction as was explicitly conferred upon it by the Legislature,” Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976), but is vested with the power to terminate parental rights, G .L.1956 § 15-7-7, and award custody of an abused, delinquent, wayward, neglected, or dependant child to any suitable person or agency. G.L.1956 § 14-1-32 and G.L.1956 § 40-11-12. However, the Family Court may only terminate parental rights or custody in limited statutorily-dictated circumstances.*294 See§ 15-7-7 (parental rights may be terminated only upon a showing of, inter alia, willful neglect, abandonment, desertion, or parental unfitness demonstrated by “ cruel or abusive nature” or “ chronic substance abuse” ); see also§ 14-132 (court may place delinquent, wayward, neglected, or dependant child in custody of appropriate person or agency); § 40-11-12 (child may be placed in custody of the Department of Children, Youth, and Families upon a showing of abuse or neglect).
The laws of Rhode Island express a preference for keeping children with their parents. “ The public policy of this state is *** to strengthen the family.” Section 40-11-1. The Family Court Act seeks to secure for children “ such care, guidance, and control, preferably in his or her own home” and “ [t]o conserve and strengthen the child's family ties wherever possible, removing him [the child] from the custody of his [or her] parents only when his or her welfare *** cannot be adequately safeguarded.” Section 14-1-2.
If the Family Court makes a finding of neglect or abuse, the court can
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either place the child back in his or her home under Department of Children, Youth, and Families (DCYF) supervision or grant custody to DCYF “ until such time as it finds that the child may be returned to the parents *** under circumstances consistent with the child's safety.” Section 40-11-12(b). The statute allows the court to require the parent to undergo “ counseling, including psychiatric evaluation and/or treatment as a prerequisite to the return of the child to his or her custody.” Id. Within twelve months after the child has been placed in DCYF's care, the court will review, inter alia,“ [t]he appropriateness of the department's plan for service to the child and parent” along with “ [w]hat services have been offered to strengthen and reunite the family,” and only “ [w]here return home *** is not likely” are alternative modes of care considered. Section 40-11-12.1. Unless the court finds egregious behavior on the parent's part, “ reasonable efforts shall be made to preserve and unify families.” Section 40-11-12.2(c).FN1 The Family Court may not grant a petition for guardianship unless: (1) the parents previously having custody have consented in writing, § 40-11-12(b), or (2) had their parental rights terminated, § 15-7-7. Furthermore, minimum due process requires clear and convincing evidence of unfitness before parental rights may be terminated. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). See also§15-7-7; In re Jonathan, 415 A.2d 1036, 1039 (R.I.1980).
Id. at 293-294.
Rhode Island case law is replete with instances demonstrating that the Family
Court and not DCYF or any other named Defendant in this case has the ultimate authority
to make decisions and enter orders addressing the custody, placement, treatment, etc, of
children found to have been abused or neglected.
III. LEGAL STANDARD
In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(1), a Court must construe the complaint liberally, treat all well-pleaded
facts as true, and indulge all reasonable inferences in favor of the Plaintiff. See Aversa v.
United States, 99 F.3d 520, 522 (1St Cir. 1996). “A plaintiff, however, may not rest
merely on ‘unsupported conclusions or interpretations of law.’ Washington Legal Found.
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V. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993).’[S]ubjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts’ will not defeat a motion to dismiss. Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)(internal quotations omitted).” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). “’…[I]n ruling on a Rule 12(b)(1) motion, a court is not limited to the face of the pleadings, A court may consider any evidence it deems necessary to settle the jurisdictional question.’” Morey v. State of Rhode Island, 359 F.Supp.2d 71, 74-75 (D.R.I. 2005) (citing Palazzolo v. Ruggiano, 993 F. Supp. 45, 46 (D.R.I.1998). In fact, ‘[t]he Court can look beyond pleadings – to affidavits and depositions – in order to determine jurisdiction.” White v. Comm’r of Internal Revenue, 899 F.Supp. 767, 771 (D.Mass.1995). In considering this motion to dismiss under Rules 12(b)(1) and 12(b)(6), the Court may take judicial notice of the prior Family Court orders and decrees. Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.1990) (“ It is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.”) Additionally, “courts have made a narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff’s claim; or for documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). It is the Plaintiff’s burden to prove the existence of subject matter jurisdiction. Murphy v. United States, 45 F.3d at 522.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the allegations in the light most favorable to the plaintiff. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). A complaint should not be dismissed for failure to state a
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claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-56
(1957). The Court must accept all well-pled factual averments as true, and draw all
reasonable inferences there from in Plaintiff’s favor. Gooley, 851 F.2d at 514. However,
The court, however, is not required to credit “ bald assertions, unsupportable conclusions, and opprobrious epithets.” Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)(internal quotation marks omitted) (quoting Chongris v. Bd. Of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). Rule 12(b)(6) is forgiving, but it “ is not entirely a toothless tiger.” Campagna v. Massachusetts Dep’t of Envtl. Prot., 334 F.3d 150, 155 (1st Cir. 2003) (quoting Dartmouth Review). A plaintiff must allege facts in support of “ each material element necessary to sustain recovery under some actionable legal theory.” Dartmouth Review v. Dartmouth Coll., 889 F.2d at 16 (quoting Gooley v. Mobile Oil Corp., 851 F.2d 513, 515 (1st Cir. 1998)).
Morey v. State of Rhode Island, 359 F.Supp.2d at 75.
IV. ARGUMENT
A. THE FEDERAL COURT SHOULD ABSTAIN FROM RENDERING A DECISION THAT WOULD INVADE THE PROVINCE OF THE RHODE ISLAND STATE COURTS OR ITS PAST AND FUTURE DECISIONS.
i. ABSTENTION BASED ON THE YOUNGER DOCTRINE
Plaintiffs allege that they have been denied federal statutory rights and violated
their First, Ninth and Fourteenth Amendment rights. The Plaintiffs seek injunctive and
declaratory relief. Without addressing the merits of the specific claims of each Plaintiff,
the Defendants submit that principles of comity support this Court’s abstention from
interfering with the Plaintiffs’ cases pending before the Rhode Island Family Court.
The seminal case calling for a Federal Court to abstain from interfering with a
pending state court case is Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.ed.2d 669
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(1971). “The Younger Doctrine is based on principles of comity, and unless there are extraordinary circumstances, it instructs federal courts not to ‘interfere with ongoing state-court litigation, or, in some cases, with state administrative proceedings.’” Rossi v. Gemma. 489 F.3d 26, 34 (1st Cir. 2007)(citing Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir. 2004)). The First Circuit has articulated the “basic analytical framework for Younger abstention”, premised on the United States Supreme Court’s decision in Middlesex County Ethics Comm. V. Garden State Bar Ass’n., 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Rossi, 489 F.3d at 34-35. “Abstention is appropriate when the requested relief would interfere (1) with an ongoing state judicial proceeding; (2) that implicates an important state interest; and (3) that provides an adequate opportunity for the federal plaintiff to advance his federal constitutional challenge.” Id. Where a case meets the Younger criteria, a district court has no discretion to provide injunctive relief and must abstain. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 816 fn22, 96 S.Ct. 1236,1 246 fn.22, 47 L.Ed.2d 483 (1976). See also J.B. ex rel. Valdez, 186 F.3d 1280, 1291 (10th Cir.1999)(“Younger abstention is not discretionary once the above conditions are met absent extraordinary circumstances that render a state court unable to give state litigants a full and fair hearing on their federal claims.” Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709, 711 (10th Cir. 1989)).
These Defendants submit that: (1) there are or were6 ongoing proceedings before the Rhode Island Family Court; (2) an important state interest is implicated; and (3) there
6 On September 24, 2007 the Family Court granted an adoption petition involving the children, Briana, Alexis and Clare. As a result, the children are no longer in foster care and their case is now closed to the Family Court
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is an adequate opportunity for the plaintiffs to advance their federal constitutional claims. Having satisfied the Younger criteria, the Defendants submit that this Court must decline exercising jurisdiction and dismiss the federal claims.
a. The Federal Litigation Would Interfere with Ongoing Proceedings Before the Rhode Island Family Court
The Family Court has original and exclusive original jurisdiction over children neglected children residing or being in the State. R.I. Gen. Laws, §14-1-5. A child suspected of being abused or neglected may initially be removed from their parents or guardians care for a period of forty-eight (48) to seventy-two (72) hours7 without a court order; however, beyond that time it is the Family Court that determines the child’s custody placement. R.I. Gen. Laws § 40-11-7.
The Family Court has seven (7) days to commence a hearing on DCYF’s filing of ex parte petition that alleges a child has been neglected or abused. R.I. Gen. Laws § 4011-7. At this initial hearing the Family Court may “make any interim orders in its discretion respecting the rights of the child.” R.I. Gen. Laws § 40-11-7.1. If, after a hearing, the Family Court determines that a child has been abused or neglected, it will enter a formal decree that either returns the child to their own home (if it is safe), albeit under the supervision of DCYF, or award care custody and control of the child to DCYF upon such terms as the Court shall determine. R.I. Gen. Laws § 40-11-12. At every regularly scheduled Family Court Review and/or dispositional hearing, DCYF must provide a written reunification or permanency plan for the Family Court’s review and approval. R.I. Gen. Laws § 40-11-12.2. The Family Court, at its discretion, may approve or modify the proposed plan. Id. The Family Court must conduct a permanency hearing
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within a period of twelve (12) months after the child has been placed in the care of DCYF
and the child has resided in a foster care or out of home placement. R.I. Gen. Laws § 40-
11-12.1. The Child Advocate has full access to the orders of the family court relating to
juveniles as well as to DCYF’s records and has the power to request reviews as required
by the best interest of the child. R.I. Gen. Laws § 42-73-7.
The facts and Family Court Orders provided to this Court demonstrate that there
are ongoing Family Court proceedings for seven (7) of the ten (10) named plaintiffs. The
three (3) remaining Plaintiffs – Briana, Alexis and Clare – were adopted on September
24, 2007 and therefore, are no longer in DCYF custody or foster care and their Family
Court case is closed.
A strikingly similar Amended Complaint to this one was filed against Nebraska
and imputed similar deficiencies in their child welfare and foster system. The United
States District Court for the District of Nebraska ruled that the Younger abstention
doctrine required dismissal of the complaint. In addressing the first Middlesex factor –
ongoing State proceedings – the District Court of Nebraska reasoned that:
Each of the plaintiffs, and every child adjudicated under Neb.Rev.Stat. 3(a) or 3(b) and in HHS legal custody, is subject to the continuing jurisdiction of the Nebraska juvenile court system. Following adjudication, the court conducts a disposition hearing to determine the child's placement and the rights of the parties in the action. In re Interest of Joshua M., 256 Neb. 596, 591 N.W.2d 557 (1999). The court must determine where the child will be placed and must review this dispositional order for each child at least once every six months to reaffirm the order or direct another disposition of the child. Neb.Rev.Stat.§43-1313. As such, the named plaintiffs, and all members of the putative class, are subject to ongoing state proceedings before the Nebraska juvenile court system. 31 Foster Children, 329 F.3d at 1277 (holding that state proceedings were ongoing where the state court holds an initial adjudicatory hearing regarding a potential foster child, “ retains continuing jurisdiction over a dependency case and reviews the child's status at least every six months,” must approve the case plan, and may amend the plan); J.B., 186 F.3d at 1291 (“
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We hold that the continuing jurisdiction of the Children's Court to modify a child's disposition, ... coupled with the mandatory six-month periodic review hearings, ... constitutes an ongoing state judicial proceeding.” ); Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185, 1204 (N.D.Cal2004)(“ [T]he substantial oversight role that the Juvenile Court must play during the pendency of a child's care within the foster system is sufficient to create an ongoing judicial proceeding for the purposes of Younger.” ); Olivia Y. ex rel. Johnson v. Barbour, 351 F.Supp.2d 543, 567-68 (S.D.Miss2004)(“ In view of the continuing nature of the duties and responsibilities statutorily imposed upon the state's youth courts, ... [the] proceedings may fairly be said to be ‘ ongoing’ in the case of each child over whom the youth courts have assumed jurisdiction.” ).
Foreman, 420 F.R.D. at 523.
Similar to Foreman, at the very least a child in DCYF’s custody in foster care is
mandated by statute to have a permanency hearing every twelve (12) months. As is
apparent from these cases, however, the Family Court has more than yearly interaction
with the children, as is evident by the facts relating to each of the ten (10) Plaintiffs.
The Foreman Court also addressed the issue of whether the Federal Court action
would interfere with the ongoing state proceedings. As they did in this case, the
Foreman plaintiffs’ did not request any specific type of injunctive relief8. 240 F.R.D. at
524. Rather, “[t]he prayer for relief in their complaint essentially requests the court to
enter an order requiring the defendants to cease violating the plaintiffs' constitutional
rights and comply with federal statutory requirements. Under circumstances such as this,
8 In 31 Foster Children v. Bush, 329 F.3d 1255, 1279 (11th Cir.2003) the plaintiffs’ Complaint (filed by Children’s Rights Attorney Maria Lowery, and Florida local counsel) similarly asserted civil rights violations arising out of Florida’s foster care system. The plaintiffs in that case expressly requested as part of their desired relief that the district court appoint a panel and give it authority to implement a systemwide plan to revamp and reform dependency proceedings in Florida, as well as the appointment of a permanent children's advocate to oversee that plan. The District Court and Eleventh Circuit were able to concretely analyze how this requested relief would interfere with the state proceedings and was a basis for abstaining under Younger. Subsequently, in Foreman and in this case, plaintiffs phrased their requested relief is very broad and abstract terms – one can only assume in an attempt to avoid the application of Younger.
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some courts have refused to abstain under Younger because, absent a specific request for
injunctive relief, they could not conclude that a federal order would necessarily interfere
with ongoing state proceedings.” Id. at 524-525 (citing to Olivia Y. ex rel. Johnson v.
Barbour, 351 F.Supp2d 543, 570 (S.D.Miss.2004); Kenny A. ex. Rel. Winn v. Perdue, 218
F.R.D. 277, 286 fn.5. However, the Foreman Court was not swayed by the plain face of
the requested relief, but rather conducted its analysis so as to be dutiful to the Supreme
Court’s stated purpose of Younger – to preserve the principles of comity and Federalism.
The Foreman Court held that:
The plaintiffs' artful pleading and lack of specificity should not serve to circumvent the principles of comity protected by Younger abstention; that is, the plaintiffs' failure to identify the specific relief requested should not assist them in defeating defendants' motion to dismiss on the basis of Younger abstention. Therefore, rather than relying on the plaintiffs' prayer for relief to determine what injunctive remedy the plaintiffs may request, the court will rely on the allegations of the amended complaint, the presumption being that the plaintiffs will ultimately request an order remedying each allegedly wrongful action or inaction performed by HHS.
Based on the specific allegations of the amended complaint, it appears the plaintiffs will request an injunction requiring the State to:
• Change its policies applicable to locating, relocating, and selecting placements for children; specifically, o Move children less frequently and to more appropriate placements; o Provide transitional support to children moving from one placement to another; o Limit the placement time spent in emergency shelters and other temporary facilities; o Eliminate or sparingly use emergency shelters and other temporary facilities for placement of small children; o Limit the number of children placed in a particular foster home; o Screen foster homes; o Limit the use of institutional placements for children; o Use institutional placements and therapeutic foster homes when warranted; o Segregate dangerous or sexually reactive children from
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other foster children; o Adequately train, prepare, inform, or support foster parents;
and o Pay foster care providers amounts which are sufficient to
cover the expenses of the child's necessary care, (filing 64 (Amended Complaint). • Reduce the length of stay in state custody by developing and implementing better case plans and terminating parental rights more quickly. • Adopt policies aimed at providing better supervision of children in its care; specifically, o Limit HHS caseworker caseloads, and provide caseworkers with more experience and training, o Monitor foster homes and supervise biological parents more closely during reunification or visitation. • Provide basic health services for foster children, such as services necessary to address acute health problems, and basic medical examinations and dental health services, • Afford access to visitation with family members • Perform all the foregoing and upgrade its computerized information systems so that Nebraska can reach the compliance levels and reporting requirements of its federally approved Child and Family Services Plan (CFSP), (see 45 C.F.R. §§284.11, 1355.32-1355.33 and any program improvement plan (PIP)), (45 C.F.R. §1355.32(B)(2) & 1355.35, and thereby secure federal funding.
Assuming the Plaintiffs request each of the foregoing types of relief, the question is whether a federal order granting such relief will interfere with the ongoing proceedings in the Nebraska juvenile courts. This determination, in turn, depends on the extent to which Nebraska juvenile court judges are already vested with oversight responsibility and authority to consider the impact of the foregoing complaints with respect to each child and enter orders for the benefit of such children under their jurisdiction.
Id. at 525-526 (Footnote omitted and citations to Amended Complaint omitted). The
Foreman Court analyzed the authority of the Nebraska Juvenile Courts, the statutory
authority and the actual role the state courts have in the lives of foster children. Id. at
526-529. The Eleventh Circuit affirmed the District Court’s determination that:
that injunctive orders by this court which attempt to impose parameters on HHS for determining where a child should be placed; if and how often a
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child should be moved to another placement; the child's length of stay in HHS custody; the methods employed and attention given to parental rights termination proceedings; the supervision of the children while in HHS custody; the level of training, experience, and workload capability of HHS caseworkers assigned to a child; the level of reporting provided to the court by HHS; the rights to visitation with family or former foster families; and the types of medical, dental, mental health, and behavioral treatment a child may need, would both directly and indirectly interfere with the plenary jurisdictional and decision-making authority of the Nebraska juvenile courts. The injunctive relief ordered would give the federal district court an oversight role over Nebraska's child welfare program, and would give it direct control over decisions currently vested in the juvenile court. J.B., 186 F.3d at 1292.
In this case, the plaintiffs are seeking relief that would interfere with the ongoing state dependency proceedings by placing decisions that are now in the hands of the state courts under the direction of the federal district court. The declaratory judgment and injunction that they request would interfere with the state proceedings in numerous ways. The federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff, such as whether a particular placement is safe or appropriate or whether sufficient efforts are being made to find an adoptive family. The federal court relief might effectively require an amendment to a child's case plan that the state court would not have approved, and state law gives its courts the responsibility for deciding upon such an amendment. .... To say the least, taking the responsibility for a state's child dependency proceedings away from state courts and putting it under federal court control constitutes “ federal court oversight of state court operations, even if not framed as direct review of state court judgments” that is problematic, calling for Younger abstention.... The relief that the plaintiffs seek would interfere extensively with the ongoing state proceedings for each plaintiff.
31 Foster Children, 329 F.3d at 1278-1279 (dismissing plaintiffs' substantive and procedural due process claims, constitutional claims for denial of family association, claims based on alleged violations of the AACWA and EPSDT on the basis of Younger abstention). See also J.B., 186 F.3d at 1291-92. (concluding Younger abstention was required because the plaintiffs' federal action would interfere with the proceedings of New Mexico's Children's Court in that the federal court would, in effect, assume an oversight role over the entire state program for children with disabilities).
Id. at 529.
The Foreman plaintiffs argued that its Amended Complaint was not directed at
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the state courts but, rather, at Nebraska’s Department of Health and Human Services
(“HHS”)–the agency that cares for the foster children. Id. The Foreman plaintiffs further
argued that “any federal court order would assist rather than interfere with the juvenile
court by imposing higher standards on HHS”. Id. The Foreman Court disagreed,
reasoning that:
Article V, §27 of the Nebraska Constitution authorized the Nebraska legislature to “ establish courts to be known as juvenile courts, with such jurisdiction and powers as the Legislature may provide.” Neb. Const. Art. V., §27. Consistent with this authority, the legislature enacted Neb.Rev.Stat. §43-285 which states:
When the court awards a juvenile to the care of the Department of Health and Human Services, an association, or an individual in accordance with the Nebraska Juvenile Code, the juvenile shall, unless otherwise ordered, become a ward and be subject to the guardianship of the department, association, or individual to whose care he or she is committed. Any such association and the department shall have authority, by and with the assent of the court, to determine the care, placement, medical services, psychiatric services, training, and expenditures on behalf of each juvenile committed to it.
Neb.Rev.Stat. §43-285(1)(LEXIS 2005)(emphasis added). Accordingly, “ [e]ven though any remedial order would run against the Department, state law makes it a duty of state courts to decide whether to approve a case plan, and to monitor the plan to ensure it is followed.” 31 Foster Children, 329 F.3d at 1279. Exercising federal court oversight over HHS' conduct on behalf of a child would serve to duplicate the authority already afforded to the Nebraska juvenile court by the Nebraska legislature. Federal court injunctive orders against HHS would undermine and interfere with the Nebraska juvenile court's ability to exercise the full extent of its authority over juvenile court proceedings.
Id. at 529-530.
As the requested relief is similarly broad and sweeping in this case, it is necessary
for the Defendants to provide an analysis similar to Foreman to demonstrate how this
lawsuit would interfere with the Plaintiff’s ongoing Family Court cases. Based on their
Amended Complaint, these Plaintiffs would be asking this Court to issue an injunction
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requiring the State of Rhode Island to:
• Change its policies applicable to locating, relocating, and selecting placements for children; specifically, o Place children in licensed foster homes and expedite the licensing of kinship foster homes, (Amended Complaint ¶¶ 5, 133, 205 ); o Place siblings in same foster care (Amended Complaint ¶153); o Ensure renewal of licenses of foster homes (Amended Complaint ¶ 133, 205, 209); o Move children less frequently and to more appropriate placements, (Amended Complaint ¶5, 142, 145, 149-150); o Delay in reunifying children with their parents without providing services needed to ensure the children’s safety, (Amended Complaint ¶5, 168); o Limit the use of institutional placement for children, (Amended Complaint ¶¶ 5, 137, 140); o Limit the placement time spent in emergency shelters and other temporary facilities, (Amended Complaint ¶¶138); o Adequately train, prepare, inform, support or monitor foster homes and institutions (Amended Complaint ¶¶ 133, 136, 185-186); o Pay foster care providers amounts which are sufficient to cover the expenses of the child’s necessary care, (Amended Complaint ¶¶ 135, 216-218);
• Reduce the length of stay in state custody by developing and implementing better case plans, terminating parental rights more quickly, and recruiting prospective adoptive parents (Amended Complaint ¶5, 161-162, 166-167, 173, 178);
• Adopt policies aimed at providing better supervision of children in its care; specifically, o Limit HHS caseworker caseloads, and provide caseworkers with more experience and training (Amended Complaint ¶¶ 5, 144, 157, 177, 187-189, 197), o Monitor foster homes and supervise biological parents more closely during reunification or visitation, (Amended complaint ¶¶ 129, 164),
• Develop and implement case plans that address children’s safety, medical, mental health, education and permanency needs, (Amended Complaint ¶¶ 5, 155-156, 179-181, 183);
• Afford access to visitation with family members, (Amended Complaint ¶154)
• Place children in foster homes as oppose to more costly institutions so that Rhode Island Title IV-V funding from the Federal Government (Amended Complaint ¶¶ 210-215).
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Assuming this was the requested relief sought by the plaintiffs, this Court, similar to Nebraska, must determine whether a federal court order would interfere with ongoing proceedings before the Rhode Island Family Court. The Defendants submit that the answer to this question is in the affirmative.
b. The Child Welfare System Is An Important State Interest There does not appear to be a dispute that the child welfare and its foster program implicate an important state interest. “’Family relations are a traditional area of state concern.” Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). The state has a compelling interest in quickly and effectively removing victims of child abuse and neglect from their parents and placing them in safe and suitable homes. State conduct performed and proceedings instituted to protect children from abuse implicate sufficiently important state interests to justify Younger abstention. Moore, 442 U.S. at 435, 99 S.Ct. 2371 (applying Younger abstention to case challenging the state's temporary removal of a child from an allegedly abusive home environment).’” Foreman, 240 F.R.D. at 524. See also, Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178, 193 (D.R.I.2004).
c. The Plaintiffs Have An Adequate Opportunity To Advance Their Federal Constitutional Claims Before the Family Court.
This last Middlesex factor requires this Court to determine whether the Rhode Island Family Court proceedings provides these federal plaintiffs the opportunity to raise their alleged federal claims. The Defendants submit that the Family Court provides each of these named plaintiffs the ability to address the various claims and, therefore, the Federal Court should abstain.
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The issue before this Court is “not whether plaintiffs’ claims were raised in the pending state proceedings, but whether they could have been raised.” Foreman, 240 F.R.D. at 530. It is the plaintiffs’ burden to prove to this Court that their individual claims could not be adequately raised before the Rhode Island Family Court. Id. citing Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979)(“holding the district court should have abstained under Younger from considering a constitutional challenge to portions of Texas statutory scheme for investigating suspected child abuse, though not every issue, including whether its computerized system for collecting and disseminating child-abuse information was constitutional, had been raised in a state judicial proceeding.”) Specifically, “[t]he plaintiffs must prove they could not have obtained a juvenile court ruling protecting them from …[DCYF’s] allegedly unlawful conduct which caused them harm or the imminent risk of future harm, either because the …[Family Court] had no jurisdiction to consider the federal questions raised in this case, had no authority to award a remedy, or because the plaintiffs lacked adequate representation in that forum.” Id. at 531. The plaintiffs cannot make this showing and sustain their burden.
The Foreman Court recognized that: [t]he Nebraska juvenile court can exercise substantial control over HHS for the protection of a child, can issue rulings governing HHS' conduct on behalf of that child, and can modify or reject HHS's recommendations regarding a child's care and placement while in HHS custody. The plaintiffs each have a court-appointed guardian ad litem to assist in the juvenile court proceedings-an attorney and officer of the court statutorily obligated to act for the plaintiff and protect his or her interests. Neb.Rev.Stat. 43—272. (Footnote omitted). Id. at 532. The Court found it of importance that each plaintiff child had a court appointed guardian ad litem to act in their best interest. Each plaintiff in this case has a
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court appointed guardian ad litem or CASA attorney representing their best interests at each and every Family Court hearing. The Foreman Court specifically distinguished the situation in Nebraska from a case filed by Children’s Rights in Georgia. In its decision, the Court noted that the right to legal representation was not available in the Georgia Childrens’ Rights case of Kenny A., Id. at fn 47. Additionally, the Nebraska Juvenile Court had the ability to address claims challenging the constitutionality of statutes. Id. at 531. Based on its analysis, the Foreman Court determined that each of its individual plaintiffs could have raised the issues presented before the State’s Juvenile Court. Id. at 532.
Similar to Nebraska, the Rhode Island Family Court is a court of limited jurisdiction; however, it also has “very broad power to issue rulings for the protection and welfare of children.” Foreman, 240 F.R.D. at 531. See In re: Stephanie B., 826 A.2d 985, 992 (RI2003)(“Generally, the Family Court is vested with broad powers over matters affecting children.”); Carr v. Prader, 725 A.2d 291 (RI 1999). The Family Court has the authority to address constitutional claims that come before it. The Family Court has in the past ruled that DCYF has not made “reasonable efforts” at reunification and, based on this determination has dismissed DCYF’s petition to terminate parental rights. See In re Manuel P., 889 A.2d 192 (2006)(The Family Court denied DCYF’s petition to terminate parental rights of her two sons as the court found that DCYF failed to make referrals for alternative services recommended by evaluating professionals). The Family Court is also empowered to address issues implicating constitutional dimensions. See In re: Destiny D., 922 A.2d 168 (RI 2007)(Issue of the parent’s Fifth Amendment privilege raised and addressed) see also In re: Stephanie B., 826 A.2d 985 (RI2003)(The Rhode
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Island Supreme Court agreed with non-party that its due process rights violated by a Family Court procedure.).
Most recently, the Family Court denied DCYF’s petition to terminate involvement of the agency with Kennth K., a twenty-year old individual who had been placed in DCYF’s custody. DCYF filed such a petition based on statutory enactment H5300, sub.A., (P.L. 07-073-22, Art.22), the State Appropriates Act that amended the jurisdictional language pertaining to the Family Court that arguably terminates DCYF’s and the court’s jurisdiction over an individual upon the age of eighteen (18). One of the arguments raised by Kenneth K.’s court appointed Guardian Ad Litem argued to the Family Court that Article 22 could not be applied retroactively to any child that came under DCYF’s protection before the enactment of the legislation. An argument raised by Kenneth’s Guardian on his behalf was that the enacted statute violated the Equal Protection Clause of the United States Constitution. Ultimately, the Family Court ruled that statute was not to be applied retroactively. In re Kenneth K., F.C. 1990-0145601/P1995-03-6883. This case is on Appeal to the Rhode Island Supreme Court. In re Kenneth K., M.P. 07-249.
As framed by the Foreman Court, “… the precise question is not whether a … [Rhode Island Family Court] can be called upon to issue a ruling declaring that specific … [DCYF] policies violate the constitution or federal law. Rather, the plaintiffs must prove the …[family court] cannot adequately consider evidence of … [DCYF’s] conduct or likely future conduct toward the individual plaintiffs, determine if such conduct violates their rights under federal constitutional or statutory law, and enter orders
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protecting the plaintiffs from …[DCYF’s] allegedly unlawful conduct.” 240 F.R.D. at 531. This Court should be mindful that:
[a] “ federal court should assume that the state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.” Pennzoil Co., 481 U.S. at 14, 107 S.Ct. 1519. The court “ will not engage any presumption ‘ that the state courts will not safeguard federal constitutional rights.’” Norwood, 409 F.3d at 904 (quoting Neal v. Wilson, 112 F.3d 351, 357 8th Cir.1997)(quoting Middlesex County Ethics Comm., 457 U.S. at 431, 102 S.Ct. 2515)). Id. Like Foreman, plaintiffs lack any evidence that Rhode Island’s Family Court and its judges are unaware of or unable to interpret the federal statutory or constitutional laws governing or impacting their rulings and procedures, nor to the extent a party claims federal law was violated at the juvenile court level, that appellate review is not available in the Rhode Island Supreme Court. Id. Indeed, since the Child Advocate has never intervened for any of the named plaintiffs in any Family Court proceeding, she cannot even allege that such matters were presented to the Family Court, let alone rejected by them.
d. Office of Child Advocate v. Lindgren This Younger analysis would not be complete without addressing the case of Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178 (D.R.I. 2004). The Plaintiffs may attempt to paint the Lindgren Court’s decision with a broad brush and apply it to this Complaint. However, the Lindgren case is so factually distinguishable from this case as to be inapposite. In Lindgren, the defendant filed a motion to vacate a consent decree (pursuant to F.R.C.P. 60(b)) that had been entered into twelve (12) years before. One of the grounds that defendant relied on in support of the motion to vacate was the Younger Doctrine.
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Ultimately the Lindgren Court rejected Younger abstention, however, it expressly stated
that it concluded that “no federal abstention rules relate to a basis for vacating the …
[consent decree] in any event.” 296 F.Supp.2d at 189. Additionally, the Lindgren Court
determined that the facts of its case did not warrant abstention because there was no
known pending state proceeding with which the Court’s judgment would interfere. Id. at
190. In Lindgren, the suit was filed in the name of the Child Advocate and not individual
minor plaintiffs as is the present case. The children named in the motion to adjudge the
defendant in contempt did not have a case pending before the Rhode Island Family Court
and, in fact, they were no longer minors. The Lindgren Court stated that:
Defendant has not made a showing that there is a pending state proceeding regarding any child involved in this case. That is obviously because Plaintiff has not brought the motion to adjudge in contempt on behalf of any specific child in DCYF custody. Although the question of abstention may recur when the Court hears that motion on its merits, it is not an issue now. One thing is clear. Although the Family Court retains jurisdiction over children in state custody, that Court has no present jurisdiction over any of the three children referred to in Plaintiff's Complaint because those children are presently in their thirties. All that this Court can say now in view of the present posture of this case, is that enforcing the SACD will not interfere with any known Family Court proceeding or decision. Since there is no known ongoing state proceeding regarding any child involved in the case at present, there is no basis for this Court to abstain under Younger v. Harris at this time.
Id. at 191.
Unlike the Lindgren case, the ten (10) named Plaintiffs have or had current and
ongoing cases pending before the Rhode Island Family Court; each Plaintiff is still a
minor; each Plaintiff has a CASA attorney or guardian ad litem acting in their best
interest in the Family Court proceedings; the Child Advocate has a right if not a duty to
intervene on behalf of each plaintiff if she believes there is a need to do so; and the
federal court proceedings or a ruling thereon would interfere with the ongoing Family
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Court proceedings. Moreover, this case is before the Court in the procedural posture of a motion to dismiss the complaint under F.R.C.P. 12(b)(1) rather than a twelve (12) year old consent decree.
Based on the foregoing, the Lindgren decision should not be used as a sword to defeat the instant motion to dismiss this Complaint.
ii. ABSTENTION BASED ON THE ROOKER-FELDMAN DOCTRINE The Defendants submit that this Court lacks subject matter jurisdiction and, therefore, should abstain from entertaining Plaintiff’s Complaint based upon the RookerFeldman Doctrine. The Rooker-Feldman Doctrine precludes a federal court from entertaining federal claims that are “inextricabley intertwined” with a state court’s adjudication of an issue. Alwyn v. Duval, 26 FedAppx. 17, 19, 2001 WL 1379861 (C.A.1 (N.H 2001.)). The Plaintiffs in this case ask this Court to issue declaratory and injunctive relief; however to reach the remedy portion, this Court must find that the Rhode Island Family Court’s decisions regarding placement, case plans, etc. for the ten (10) named plaintiffs were unsound, placed them in positions of peril and violated their rights. The Rooker-Feldman Doctrine originated from two (2) United States Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S.413, 44 S.Ct. 149, 68 L.Ed.362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In Rooker, the Court was asked to declare a judgment of the Indiana state courts null and void as a violation of the Contract, Due Process, and Equal Protection Clauses of the United States Constitution. The Court affirmed the district court's conclusion that jurisdiction was lacking, stating that: “ Under the legislation of Congress, no court of the United States other than this court could entertain a proceeding to reverse or modify the judgment [of a state court] for errors of that character.” Rooker, 263 U.S. at 416, 44 S.Ct. 149.
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The Feldman case expanded in some significant ways upon the relatively non-controversial principle that only the Supreme Court has jurisdiction to review decisions of state courts. The plaintiffs, Marc Feldman and Edward Hickey, Jr., had both sought admission to the District of Columbia bar. Feldman, 460 U.S. at 465, 471, 103 S.Ct. 1303. Standing in their way was an admissions rule requiring applicants to have graduated from an ABAapproved law school, id. at 464, 103 S.Ct. 1303; Feldman had pursued an apprenticeship-type program with a practicing attorney in Virginia, id. at 465, 103 S.Ct. 1303, while Hickey had attended a non-accredited law school, id. at 470, 103 S.Ct. 1303. After being denied admission by the Committee on Admissions of the District of Columbia Bar, Feldman petitioned for a waiver of the requirement to the District of Columbia Court of Appeals. Id. at 465-66, 103 S.Ct. 1303. Hickey also petitioned for a waiver. Id. at 471, 103 S.Ct. 1303. Both requests were denied in per curiam orders. Id. at 468, 472, 103 S.Ct. 1303.
Feldman and Hickey then filed suit in federal district court challenging the denials of their waiver petitions and the constitutionality of the admission rule. Id. The district court dismissed the complaint, holding that it lacked subject matter jurisdiction. The Court of Appeals for the District of Columbia Circuit reversed, Feldman v. Gardner, 661 F.2d 1295 (D.C.Cir.1981), and appeal followed to the Supreme Court.
After making a preliminary determination that the District of Columbia Court of Appeals' denials of the waiver petitions were judicial proceedings, Feldman, 460 U.S. at 479, 103 S.Ct. 1303, the Supreme Court held that the district court lacked jurisdiction to review issues that were either resolved by the waiver decisions or “ inextricably intertwined” with those issues that were decided:
If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, the District Court is in essence to review the state court decision. This the District Court may not do. Id. at 482 & n. 16, 103 S.Ct. 1303. On the other hand, the district court did have subject matter jurisdiction over the general constitutional challenge to the bar admission rule, provided that no review of Feldman or Hickey's individual denials resulted. Id. at 486, 103 S.Ct. 1303. The Supreme Court remanded the case for a determination on the merits on the issue of whether the requirement that Bar members have degrees from ABAapproved schools was unconstitutional. Id. at 487-88, 103 S.Ct. 1303.
Wilson v. Shumway, 264 F.3d 120, 123 (1st Cir.2001). Footnote omitted. The First
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Circuit has held that Rooker-Feldman bars a federal court’s jurisdiction not only over those claims adjudicated in the state court but also over federal claims that a party does not actually raise but are “inextricably intertwined” with the claims adjudicated in the state proceedings. Alwyn v. Duval, 26 FedAppx. 17, 19, 2001 WL 1379861 (C.A.1 (N.H.))(citing Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir.2000)). For point of clarification, “[a] federal claim is inextricably intertwined with the state court claims ‘if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.’” Alwyn, 26 Fed.Appx at 19 (citing Hill v. Town of Conway, 193 F.3d 33, 39 (1st Cir.1999)). In 2005, the United State Supreme Court gave further guidance on the Rooker-Feldman Doctrine in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 1526, 161, L.Ed.2d 454 (2005). Since Exxon Mobile, the First Circuit has held that “the Rooker-Feldman doctrine now applies only in the ‘ limited circumstances' where ‘ the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” ’ Federaciòn de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico , 410 F.3d 17, 23-24 (1st Cir. 2005).
Although rendered prior to Exxon Mobile, the First Circuit’s reasoning and application of the Rooker-Feldman Doctrine in both Alwyn and Wilson are sound and support its application to the instant case and a dismissal of the Amended Complaint. In Alwyn, local police responded to a call that two children were missing. 26 Fed.Appx at 18. After protracted discussion with the parents of the missing children, Michael and Simone-Alys, permitted the police into their house. Id. The children were later found;
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however, the police took the children into protective custody and placed them in foster homes because of the deplorable living conditions in the home. Id. at 18. The New Hampshire DCYF filed child neglect petitions in the Concord District Court. Id. at 19. After conducting a full evidentiary hearing the Concord District Court entered a finding of neglect. Id. The Court also issued a dispositional order authorizing DCYF to continue legal supervision over the children. Id. The parents appealed. Id. As the conditions set forth in the original neglect petition had been corrected, DCYF agreed to terminate the neglect petition if the parents agreed to terminate their appeal. Id.
Thereafter the Alwyns filed a civil rights action against the two police officers. Id. at 17. The Alwyns claimed that the officers violated their constitutional rights by misrepresenting the condition of their apartment and resulted in their children being temporarily removed from their custody. Id. The First Circuit affirmed the District Court for the District of New Hampshire’s dismissal of the Alwyns’ complaint. The First Circuit held that the federal court lacked subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Id. at 17-18. The First Circuit agreed with the District Court’s decision that:
… pursuant to the Rooker-Feldman doctrine, it had no subject matter jurisdiction to hear the Alwyns' misrepresentation claim in light of the Concord District Court's February 13, 1997 finding of neglect. The district court reasoned that, in order for appellants' claim to succeed, the factfinder would have to reject the officers' testimony regarding the condition of the Alwyns' home, which would directly contradict the determination already made by the state tribunal. Consequently, the district court dismissed the count. Id. at 19-20. In Wilson v. Shumway, 264 F.3d 120 (1st Cir. 2001), it was determined that the federal court lacked subject matter jurisdiction based on the Rooker-Feldman doctrine.
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The plaintiff David Wilson, who suffered from a mental illness, threatened his neighbor with a loaded gun. Wilson, 264 F.3d at 121. The Merrimack County Probate Court ordered that Wilson be involuntarily confined to New Hampshire Hospital for up to three (3) years. Id. During the hospitalization, the State of New Hampshire petitioned the probate court to appoint a guardian for Wilson as he refused to take his anti-psychotic medications. Id. A guardian was appointed, who also made decisions relating to Wilson’s living arrangements and medical treatment options. Id.
Wilson filed a complaint in federal court claiming that his constitutional rights were violated because he was forced to take anti-psychotic medication. Id. Thereafter Wilson filed before the probate court a motion to terminate his guardianship. Id. at 122. The probate court denied his petition finding that Wilson continued to be incapacitated and incapable of exercising the rights that had been assigned to the guardian. Id.
In an attempt to avoid dismissal, Wilson characterized his complaint as a general constitutional challenge regarding New Hampshire’s procedure for permitting a guardian to authorize the involuntary administration of anti-psychotic drugs. Id. at 124. Artfully, Wilson fashioned his argument that:
…the current statutory scheme relating to involuntary medication lacks constitutionally-guaranteed procedural due process mechanisms. Specifically, Wilson claims that before a recommendation that a ward be forcibly medicated can be submitted to a guardian for authorization, a ward is entitled to: (1) notice that such a recommendation will be made, with legal and factual reasons for the recommendation explicitly provided; (2) notice of a right to a hearing before an impartial arbiter in which the need for medication must be proven beyond a reasonable doubt; and (3) notice of the right to be represented by counsel at that hearing. Id. Defendant State of New Hampshire characterized Wilson’s argument for what it was – an attempt to avoid the Rooker-Feldman Doctrine. Defendant State argued that: Wilson's federal complaint as nothing more than a thinly-veiled attack on
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the state guardianship proceeding. Because Wilson's federal complaint focuses on forcible medication as applied to him, and seeks personal, rather than general, relief, appellees charge that Wilson's claim of a “ general” challenge is merely an attempt to avoid the Rooker-Feldman bar to jurisdiction. Finally, appellees argue that the injury Wilson complains of would not exist if not for the probate court's determination that guardianship was appropriate. His federal case, then, seeks to undo the consequences of the state court judgment, and such jurisdiction is prohibited under Rooker-Feldman.
Id. at 124-125. The District Court and First Circuit agreed with the State Defendants.
The First Circuit stated that:
After reviewing the arguments of both sides, as well as Wilson's amended complaint, we conclude that the district court was correct in dismissing Wilson's complaint for lack of jurisdiction. In so holding, we are unpersuaded by Wilson's claim that he has mounted a general constitutional challenge to the New Hampshire provisions for authorizing the involuntary administration of anti-psychotic drugs. We turn first to the non-procedural claims alleged in Wilson's complaint, and then proceed to his primary appellate argument.
Id. at 125. The First Circuit ruled that the District Court “properly refrained from
deciding whether the forcible administration of drugs to Wilson violates the Constitution
and/or the ADA, because retaining jurisdiction would have put the district court in the
position of reviewing the probate court's decision. “ Id.
The State defendants acknowledge that the Tenth Circuit declined to apply the
Rooker-Feldman Doctrine in the Foreman case as it opined that its plaintiffs did not seek
reversal of any prior juvenile court rulings. 240 F.R.D. at 522. The Foreman Court
reasoned that plaintiffs “requested injunction seeks HHS policy changes that may affect
the outcome of future juvenile court review proceedings, but this requested relief will not
effectively reverse past rulings” and as such was not attempting to appeal a state court
judgment. Id. at 522-523. The First Circuit, however, as is evidenced by the Alwyn and
Wilson decisions, has a more expansive view of the Rooker-Feldman Doctrine. The First
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Circuit has invoked the doctrine, despite artfully termed complaints, to avoid placing a federal court in a position where it would review a state court’s decision. See Wang v. New Hampshire Board of Registration in Medicine, 55 F.3d 698, 703 (1st Cir.1995)(“Constitutional claims presented to a United States district court, and found to be “inextricably intertwined” with state court proceedings, impermissibly invite the federal district court, “in essence,” to review a final state court decision. Feldman, 460 U.S. at 482 n.16, 103 S.Ct. at 1315. Lower federal courts are without subject matter jurisdiction to sit in direct review of state court decisions. Id.”). See also, Davison v. The Government of Puerto Rico-Puerto Rico Firefighters Corps, 471 F.3d 220 (1st Cir. 2006).
There are numerous examples in this case where the plaintiffs are claiming an injury from a Family Court order and are asking this Court to find the Family Court was wrong. Although the plaintiffs frame this Amended Complaint as seeking prospective relief – in order for this Court to grant this remedy it must find that the Family Court was wrong in its orders and plaintiffs suffered injuries as a result.
In the case of Briana, Alexis and Clare, Plaintiffs claim that the children were allowed “to languish without appropriate permanency services in an unlicensed and overcrowded foster home which DCYF knows will not be permanent and in which their safety is in constant jeopardy.” Amended Complaint ¶80. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding9 that the Family Court’s orders placing or approving of DCYF’s placement of Briana, Alexis and Clare with Aunt G.B. were wrong and actually
9 Obviously, to do so this Court would have to hold an individualized, contested hearing in this case and in every other case in which it is asked to overrule the Family Court.
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caused the children harm. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
By way of another example, Plaintiffs allege that David T.’s constitutional and statutory rights were violated by failing to provide him with appropriate, least-restrictive placements and by failing to provide necessary and appropriate permanency and adoptive services.” Amended Complaint ¶68. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that the Family Court’s orders approving of DCYF’s placements of David and the Family Court’s findings “that DCYF had documented a reason why return home, adoption or guardianship placement with a relative was not an appropriate permanency goal” were wrong and actually caused the child harm. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
By way of another example, plaintiffs allege that Defendants have violated Sam and Tony’s constitutional and statutory rights by failing to provide necessary and appropriate permanency and adoptive services. Amended Complaint ¶33. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that the Family Court’s orders of July 6, 2006 and January 11, 2007 which found that DCYF was making reasonable efforts to finalize a permanency goal of adoption or guardianship for both children were wrong or resulted in harm to the brothers. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
By way of another example, plaintiffs allege that Defendants have violated Danny and Michael’s constitutional and statutory rights by failing to develop and implement an
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appropriate permanency plan in a timely manner to allow them to secure a permanent home. Amended Complaint ¶95. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that: the Family Court’s findings at November 29, 2006 and March 28, 2007 hearings that DCYF was making reasonable efforts to finalize a permanency goal of adoption or guardianship for both children were wrong or resulted in harm to the brothers. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
Wherefore, the Defendants submit that this Court should abstain and dismiss this case based on the Rooker-Feldman Doctrine.
iii. THE COURT LACKS JURISDICTION OVER SOME PLAINTIFFS’ AS THEIR CLAIMS ARE MOOT
The Court should dismiss the claims of Plaintiffs Brianna, Alexis and Clare based on mootness. On September 24, 2007, the Family Court approved the adoption of Brianna, Alexis and Clare.
Article III of the Constitution restricts the jurisdiction of federal courts to the resolution of actual cases and controversies. Overseas Military Sales Corporation, Ltd. v. Giralt–Armada, --- F.3d ---, 2007 WL 2685153 (1st Cir. Sept.14, 2007). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). “The case or controversy requirement ensures that courts do not render advisory opinions. Put another way, ‘those words limit the business of federal courts to questions presented in an adversary context.’” Giralt–Armada, --F.3d ---, 2007 WL 2685153 at p.3 (citing, Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)).
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Plaintiffs claims brought on behalf of Brianna, Alexis and Clare must be dismissed based on mootness. On September 24, 2007, the Family Court approved the adoption of Brianna, Alexis and Clare. These three plaintiffs are no longer in the legal custody of DCYF or its foster care system and, therefore, will not be subject to placement or permanency issues, allegedly overcrowded or unlicensed foster homes. As plaintiffs’ complaint only seeks prospective injunctive relief, no live case or controversy exists between Brianna, Alexis and Clare and the State Defendants. Thus, Brianna, Alexis and Clare do not have a legally cognizable interest in the outcome of this lawsuit and, therefore, their claims are moot. See 31 Foster Children, 329 F.3d 1255, 1263.
iv. THE COURT LACKS JURISDICTION BASED ON LACK OF STANDING FOR PLAINTIFFS’ “NEXT FRIENDS”
Three individuals, Professor Gregory Elliot, Kathleen Collins and Mary Melvin have instituted this lawsuit as the “next friends” of the ten (10) named Plaintiff children. The Defendants submit that these individuals do not have standing as “next friends” to bring this Amended Complaint. The Defendants further submit that these three individuals have failed to demonstrate to this Court that they meet the requirements to act in this capacity.
It is pursuant to Fed.R.Civ.P. 17(c) that Professor Gregory Elliot, Kathleen Collins and Mary Melvin bring this suit on behalf of the ten named children. Rule 17(c) provides that:
Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make
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such other order as it deems proper for the protection of the infant or incompetent person. The Federal Courts have held that there are three essential elements that must be satisfied for “next friend” standing. “First, a ‘next friend’ must provide an adequate explanationsuch as inaccessibility, mental incompetence, or other disability – why the real party in interest cannot appear on his own behalf to prosecute the action.” Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990). “Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” Whitmore, 495 U.S. at 163, 110 S.Ct. 1717. Third, it is generally accepted that “a ‘next friend’ must have some significant relationship with the real party in interest.” Id. It is the ‘next friend’s” burden of proof to “establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. The Defendants submit that Elliot, Collins and Melvin cannot satisfy the three elements to obtain “next friend” standing in this case. All the Plaintiff children already have an appropriate “next friend” – the Family Court appointed guardian ad litem or CASA attorney representing their legal interests. Elliot, Collins and Melvin cannot demonstrate that they are “truly dedicated” to the best interests of the child/children on whose behalf they seek to litigate. Elliot, Collins and Melvin cannot demonstrate that they have some significant relationship with the child/children – the real parties in interest. Accordingly, Elliot, Collins and Melvin do not have standing to invoke this Court’s jurisdiction. The Plaintiffs make a broad, yet otherwise unsupported, assertion to this Court that “each friend is sufficiently familiar with the facts of the child’s (or children’s) situation to fairly and adequately represent the child’s (or children’s) interest in this
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litigation. Even if this Court were to accept Plaintiffs’ representation on its face, it still would not be sufficient to demonstrate that they are truly dedicated to the best interests of the children on whose behalf they seeks to litigate and have some significant relationship with the children – the real parties in interest.
There has been no evidence presented as to how these self-proclaimed “next friends” have “become familiar” with the each child or their placements, medical treatments, schooling etc. There have been no representations to this Court that Professor Elliot has spoken with Sam and Tony M., Briana, Alexis, Clare, and Deanna H. and Danny and Michael B, their caseworkers, their relatives, their court-appointed guardian ad litems, etc. Moreover, there is no indication how Professor Elliot could have obtained or can obtain during this lawsuit the necessary information about these children without a violation of Rhode Island’s confidentiality statutes. See R.I. Gen. Laws §9-10-21, 537.3-10 and 42-72-8.
There is no evidence why Professor Elliot should serve as “next-friend” for Tony and Sam M and Deanna H. when their respective mothers continue to retain parental rights10 and the children have a Court Appointed Special Advocate appointed to represent their interests. Simply stated, there is no evidence that would allow this Court to conclude that Professor Elliott: (1) is truly dedicated to the best interests of Sam and Tony M., Briana, Alexis, Clare, and Deanna H. and Danny and Michael B. on whose behalf he seeks to litigate or (2) that he has some significant relationship with Sam and Tony M., Briana, Alexis, Clare, and Deanna H. and Danny and Michael B..
10 Since the mother retains parental rights it appears that the proposed “next friend” who may have been given confidential information about the children in violation of Rhode Island Law, brings this action to second guess the actions of the child’s parent as well as the Family Court.
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Moreover, there is no evidence as to why Briana, Alexis and Clare – who were legally adopted on September 24, 2007 – even need a “next friend” to pursue this litigation or that Professor Elliot even qualifies as a “next friend” under the plain language of Rule 17(c). Briana, Alexis and Clare have an appropriate legal guardian – the person who adopted them on September 24, 2007. Allowing Professor Elliot to prosecute this case as the “next friend” of Briana, Alexis and Clare flies in the face of “the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
Similarly, there has been no representations or evidence presented to this Court why Ms. Collins, a psychologist in the school Caesar attends, is an appropriate “next friend.” There has been no representations to the Court that Ms. Collins has spoken with Caesar’s caseworker, his relatives, his court-appointed guardian ad litem, and/or his educational advocate. There is no indication how Ms. Collins could have obtained or can obtain during this lawsuit the necessary information about Caesar without a violation of Rhode Island’s confidentiality statutes. See R.I. Gen. Laws §9-10-21, 5-37.3-10 and 4272-8.
There is no evidence that Ms. Collins has appeared before the Family Court and presented any concerns that she has regarding Caesar’s living arrangements, mental health treatment, etc.11 In fact, as a school official, Ms Collins is arguably an “appropriate
11 The Amended Complaint ¶ 54 alleges that “Defendants have violated Caesar’s constitutional and statutory rights by failing to protect him from harm while in state custody; by knowingly placing him in inappropriate living arrangements; by ailing to provide him with mental health services necessary to prevent his mental health from deteriorating while in DCYF custody; by failing to provide him with appropriate’ least
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person” to bring information to the Family Court’s attention. See R.I. Gen. Laws §14-13. There is no evidence that allows this Court to conclude that Ms. Collins (1) is truly dedicated to the best interests of Caesar or (2) that she has some significant relationship with Caesar other than working at the school he attends.
Again, there has been no representations or evidence presented to this Court why Ms. Melvin is currently in a position to be an appropriate “next friend” for David T. Admittedly Ms. Melvin was David’s foster parent for a period of time. However, this Court has not been presented with any evidence of contact between Ms. Melvin and David T. after their separation in 1998. Moreover, there is no indication how Ms. Melvin could have obtained or can obtain during this lawsuit the necessary information about David T. without a violation of Rhode Island’s confidentiality statutes. See R.I. Gen. Laws §9-10-21, 5-37.3-10 and 42-72-8.
Rather, Plaintiffs make a blanket statement that Ms. Melvin was a “resource” for David. The Defendants submit that Ms. Melvin has failed to demonstrate to the Court that she satisfies the three elements necessary to be considered a “next friend”.
The Foreman Court addressed the issue of appropriate “next friends.” In Foreman, the United States District Court for the District of Nebraska found that:
The self-appointed next friends in this case are not family members, conservators, or other guardians of the named plaintiffs. Before this suit was filed, the next friends had little prior or no recent contact, and in some cases no contact at all, with the named plaintiffs they seek to represent. (240 F.R.D. at 518).
*** The next friends have made little, if any, effort to communicate with
restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services.”
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members of the community who may have relevant information concerning the named plaintiffs' well being. (240 F.R.D. at 518).
***
The evidence supports a finding that each of these next friends have “ an ideological stake” in the named plaintiffs' case; their primary objective appears to be changing Nebraska's child welfare system. (240 F.R.D. at 519).
***
There is also reason to question the “good faith” motivation, initiative, fortitude, and dedication of these next friends to represent the named plaintiffs' interests. The record reflects that the next friends expended little, if any, effort to seek out sources and discover the current circumstances or the potential risk of harm faced by their assigned named plaintiff. They filed a complaint on behalf of the child without this knowledge; and as of the time their depositions were taken (at least three months after this suit was filed), they still lacked the information necessary to assess the state's current efforts on behalf of the child, and had little, if any, reliable information concerning the circumstances and suitability of the child's current placement. Whatever concerns they did have were not voiced to the juvenile court, guardians ad litem, county attorneys, HHS caseworkers, or the Foster Care Review Board. The evidence currently before me indicates that while each next friend may have sincere empathy for her named plaintiff's plight, her goal in this litigation is system change on behalf of others and not advocating the individual interests of her named plaintiff. Footnote omitted. (240 F.R.D. at 519-520).
The Defendants in this case submit that the proposed “next friends” in this case have
similarly not demonstrated to this Court a specific knowledge and understanding of the
plaintiff children they propose to represent.
The Foreman Court was reluctant to dismiss their case based on the lack of
standing of the next friends as it reasoned that children in foster care may not have family
or established a “significant relationship” with an adult to litigate on their behalf. 240
F.R.D. at 520. The Foreman Court stated that if the case survived the abstention – which
it did not – then new next friends should be appointed by the Court. Id. at 551.
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For the foregoing reason, the Defendants request that this Court find that Professor Elliot, Ms. Collins and Ms. Melvin have failed to sustain their burden of proof and demonstrate that they have standing as “next friends” for the named plaintiff children.
B. THE FEDERAL COURT SHOULD GRANT DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) AS NO PRIVATE RIGHT OF ACTION EXISTS
Plaintiffs claim that the Defendants violated the rights conferred upon them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§621-629(i), 670-679(b) and its regulations promulgated under the Code of Federal Regulations (hereinafter referred to as “AACWA”). The AACWA falls within the provisions of the federal Medicaid Act. The Eleventh Circuit in 31 Foster Children and the District Court for the District of Nebraska in Foreman conducted extensive analysis of similar claims brought by foster children in their states by Children’s Rights and local counsel and found that the AACWA did not confer a right that is enforceable under 42 U.S.C. §1983. As such, the claims were dismissed. The instant Amended Complaint is very similar to that brought in Nebraska; however, Rhode Island Plaintiffs attempt to distinguish themselves by adding a few additional sections of the AACWA. The Defendants submit that regardless of the addition, the legal analysis set forth in 31 Foster Children and Foreman remains sound, applies to this case and compels a dismissal of the claims.
A plaintiff asserting a claim under 42 U.S.C. §1983 may not rest on mere allegations of a pure violation of federal statute; rather, the plaintiff must demonstrate a violation of a federal right. Blessing v. Freestone, 520 U.S. 329, 329, 117 S.Ct. 1353,
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1354, 137 L.Ed.2d 569 (1997). “’The [United States Supreme] Court in Wilder v. Virginia Hosp.Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), summarized previous decisions and held that determining whether a statute creates a “ federal right” enforceable under §1983 “ turns on whether the provision in question was intend[ed] to benefit the putative plaintiff.... If so, the provision creates an enforceable right unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the governmental unit, ... or unless the interest the plaintiff asserts is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.’ Wilder, 496 U.S. at 510-511, 110 S.Ct. 2510.” Foreman, 240 F.R.D. at 533.
The United States Supreme Court established essentially a test to determine whether a federal private right of action existed, which has been deemed the Blessing test. Foreman, 240 F.R.D. at 534. The Blessing test requires a plaintiff to demonstrate “three principal factors determine whether a statutory provision creates a privately enforceable right: (1) whether the plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff's asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation on the State.” Blessing, 520 U.S. 329, 329-330, 117 S.Ct. 1353, 1354, 137 L.Ed.2d 569 (1997).
In Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) the Supreme Court provided applied the Blessing test to determine whether a federal statutory spending provision created a private right of action. In Gonzaga, John Doe, a former undergraduate of Gonzaga University, needed an affidavit of good moral character from a dean of the school as a prerequisite for a teaching position at a
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Washington public school. 536 U.S. at 277, 122 S.Ct. at 2272. Gonzaga University
declined to provide this attestation and in fact contacted the Washington public school
system and discussed its reasons for its position. Id. Doe filed a lawsuit alleging state
tort and contract claims, but also a claim under the Family Educational Rights and
Privacy Act of 1974 (“FERPA”). Id. The Washington Court of Appeals reversed a jury
verdict in favor of Doe on the FERPA claim; in so doing it found that FERPA did not
create individual rights and was not enforceable under §1983. 536 U.S. at 278, 122 S.Ct.
at 2272. On appeal the Washington Supreme Court disagreed and held that FERPA’s
nondisclosure provision provided a federal right enforceable under §1983. Id.
The United States Supreme Court explained: “Congress enacted FERPA under its
spending power to condition the receipt of federal funds on certain requirements relating
to the access and disclosure of student educational records. The Act directs the Secretary
of Education to withhold federal funds from any public or private ‘educational agency or
institution’ that fails to comply with these conditions.” 536 U.S. at 278, 122 S.Ct. at
2272-2273.
In holding that FERPA does not create a right enforceable under §1983, the Supreme Court explained that the act lacks “ rights-creating” language critical to showing congressional intent to create new rights. Instead, the act speaks only to the Secretary of Education, directing him to withhold funds if the prohibited practice exists. Gonzaga, 536 U.S. at 287, 122 S.Ct. at 2277. The Court contrasted FERPA's language that “ [n]o funds shall be made available,” with the individually focused language of Titles VI and IX, which mandate that “ [n]o person ... shall ... be subjected to discrimination,” statutes that do create enforceable rights, see Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Court concluded in Gonzaga that the focus of FERPA is “ two steps removed from the interests of individual students and parents.” 536 U.S. at 287, 122 S.Ct. at 2277. Instead of creating an enforceable duty on the part of the school, the act only imposed a duty on the part of the federal government-the duty to withhold funds.
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A second reason the Supreme Court gave in Gonzaga for concluding that FERPA does not create enforceable rights is that its nondisclosure provisions speak only in terms of institutional policy and practice, not about “ individual instances of disclosure.” Id. at 288, 122 S.Ct. at 2278. The provisions therefore have an aggregate focus, instead of a concern for “ whether the needs of any particular person have been satisfied.” Id. (citation omitted). Also thought significant is the fact that institutions can avoid funding termination under FERPA by substantial compliance with the act's requirements; compliance in every case is not necessary to avoid loss of funding. Id.
Finally, the Supreme Court considered in Gonzaga the mechanism that Congress chose to provide for enforcing the provisions of FERPA. The act expressly authorizes the Secretary of Education to “ deal with violations” of it and to establish a review board for investigating and adjudicating such violations. 20 U.S.C. §1232G(f). The Secretary's regulations create an office to act as a review board, and students can file individual written complaints with that office. This review mechanism, the Court concluded, evidences a congressional intent to avoid the multiple interpretations of FERPA that might arise if the act created enforceable individual rights. Gonzaga, 536 U.S. at 289-90, 122 S.Ct. at 2278-79.
31 Foster Children, 329 F.3d at 1269-1270.
The Eleventh Circuit stated that the lesson it was taking from Gonzaga was:
… to look at the text and structure of a statute in order to determine if it unambiguously provides enforceable rights. If the text and structure “ provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.” Id. at 286, 122 S.Ct. at 2277. If they provide some indication that Congress may have intended to create individual rights, and some indication it may not have, that means Congress has not spoken with the requisite “ clear voice.” Ambiguity precludes enforceable rights. Id. at 280, 122 S.Ct. at 2273. The first Blessing requirement, which is what Gonzaga addressed, is that Congress must have intended that the provision in question benefit the plaintiff. Factors to consider in determining if it did include whether the statute: (1) contains “ rights-creating” language that is individually focused; (2) addresses the needs of individual persons being satisfied instead of having a systemwide or aggregate focus; and (3) lacks an enforcement mechanism through which an aggrieved individual can obtain review.
31 Foster Children, 329 F.3d at 1270. The Eleventh Circuit provided this degree of
analysis to the plaintiff foster children’s claim that Florida’s DCF system violated their
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rights under §§675(5)(D) and (E) of the AACWP in 31 Foster Children. The Eleventh
Circuit held that §§675(5)(D) and (E): did “have the kind of focused-on-the-individual,
rights creating language required by Gonzaga” that would create a private right nor did
the AACWA contain a mechanism by which aggrieved individuals could enforce its
provisions. Id. at 1272.
Subsequent to Gonzaga, the Eighth Circuit in the case of Lankford v. Sherman,
451 F.3d 496 (8th Cir.2006) applied the Blessing test to determine whether Spending
Clause legislation, like the AACWA, created a private right of action enforceable under
42 U.S.C § 1983. Foreman, 240 F.R.D. at 534.
In Lankford, the plaintiffs, who were disabled adult Medicaid recipients, sought an injunction prohibiting the Missouri Director of Social Services from enforcing a new state regulation which curtailed providing durable medical equipment (“ DME” ) to Medicaid recipients other than blind persons, pregnant women, needy children, or those who receive home health care services under the state plan. The plaintiffs sought to enjoin enforcement of the Missouri regulation because it allegedly violated federal comparability and reasonable-standards laws requiring states to treat Medicaid recipients equally and with reasonable, non-discriminatory standards. 42 U.S.C. §§1396(a)(10)(B), (a)(17).
Lankford held that the plaintiffs had no individualized federal right to reasonable Medicaid standards enforceable under 42 U.S.C. §1983. Lankford explained:
For legislation enacted pursuant to Congress's spending power, like the Medicaid Act, a state's non-compliance typically does not create a private right of action for individual plaintiffs, but rather an action by the federal government to terminate federal matching funds. See Pennhurst State Sch & Hosp. V. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). While the Supreme Court has rarely found enforceable rights in spending clause legislation, it has not foreclosed the possibility that individual plaintiffs may sue to enforce compliance with such legislation. See Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 430, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)(Federal Housing Act supports a cause of action under section 1983); Wilder v. Va. Hosp. Ass’n., 496 U.S. 498, 510, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990)(Medicaid providers had an individual right to reasonable reimbursement rates
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under the now-repealed Boren Amendment). Still, the Court has since limited the circumstances where a private right of action is found under section 1983. See Suter v. Artist M., 503 U.S. 347, 363, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992)(no private right of action under the Adoption Assistance and Child Welfare Act, which requires states to make “ reasonable efforts” to keep children out of foster homes); Blessing v. Freestone, 520 U.S. 329, 344-45, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)(no private right of action under Title IV-D of the Social Security Act, which requires states to “ substantially comply” with requirements designed to ensure timely payment of child support); Gonzaga, 536 U.S. at 290, 122 S.Ct. 2268 [,153 L.Ed.2d 309](no private right of action under the Family Educational Rights and Privacy Act, which prohibits federal funding of educational institutions that have a policy of releasing confidential records to unauthorized persons).
Lankford, 451 F.3d at 508. (citing and affirming continued use of the Blessing test). If so, it is presumably enforceable under §1983. This presumption is rebutted if Congress explicitly or implicitly forecloses section 1983enforcement, but the availability of administrative mechanisms alone cannot defeat the plaintiffs' claim under §1983 if the other requirements of the three-part test are met. Lankford, 451 F.3d at 508(citing Blessing, 520 U.S. at 341, 347, 117 S.Ct. 1353).
Foreman, 240 F.R.D. at 535.
The federal statutory provision that these plaintiffs bring their claims under is the
AACWA. The AACWA was enacted under the spending clause. “[It] .. comprises Parts
B and E of Title IV of the Social Security Act and is a federal funding statute that
establishes a program of payments to states for foster care and adoption assistance. 42
U.S.C. §§620-628, 670-679a.” 31 Foster Children, 329 F.3d at 1270. “A State will be
reimbursed by the Federal Government for certain expenses it incurs in administering
foster care and adoption services, if it submits a plan for approval by the Secretary of
Health and Human Services.” Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 1362, 118
L.Ed.2d 1 (1992). “In legislation enacted pursuant to the spending power, the typical
remedy for state noncompliance with federally imposed conditions is not a private cause
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of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Gonzaga University v. Doe, 556 U.S. 273, 279, 122 S.Ct. 2268, 2273, 153 L.Ed.2d 309 (2002)(citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2w 694 (1981)). As it pertains to legislation enacted pursuant to the spending power, the United States Supreme Court has unequivocally stated that “unless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights, federal funding provisions provide no basis for private enforcement by §1983. Gonzaga, 556 U.S. at 279, 122 S.Ct. at 2273.
The Foreman Court conducted an extensive and individual analysis of the fifteen (15) provisions12 of the AACWP that the Nebraska plaintiffs alleged provided them enforceable rights that were violated by the Nebraska equivalent of our DCYF. After applying the Blessing test to each of these provisions, the Foreman Court found that the provisions did not create a private right of action that could be enforceable and dismissed them pursuant to F.R.C.P. 12(b)(6). The Rhode Island Defendants submit that the Foreman’s Court’s analysis is applicable to the same allegations asserted in this Amended Complaint and, similarly, compel a dismissal.
ii. 42 U.S.C. §§ 671(a)(1), 672(a)-(c) and 675(4)(A) Similar to Foreman, the plaintiffs allege a private right of action under §671(a)(1), §672 (although in this Amended Complaint they limit it to subsections (a) –
12 The Foreman plaintiffs alleged that the AACWP sections: 42 U.S.C. §§ 622(b)(10)(B), 627(b)(2), 671(a)(10)*, 671(a)(11)*, 671(a)(15), 671(a)(16)*, 671(a)(19), 671(a)(22)*, 672*, 675(1)*, 675(4)*, 675(5)(B)*, 675(5)(D), 675(5)(E), and 45C.F.R. Parts 13551357* created private rights capable of enforcement. The sections that have been asterisked have been similarly plead in whole or in part against the Rhode Island State Defendants.
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(c)) and §675(4) (also limited to subsection (A)). The Defendants submit that the
Foreman Court properly found that plaintiffs failed to satisfy the first and second
elements of the Blessing test and the claims should be dismissed pursuant to Rule
12(b)(6). The Defendants submit that the instant allegations should similarly be
dismissed.
Under 42 U.S.C. §671(a)(1), the state's federally approved plan must provide “ for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title.” Section 672 outlines the eligibility requirements and circumstances under which the state must pay foster care maintenance payments. “The term ‘ foster care maintenance payments' means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation.” 42 U.S.C. §675(4)(A).
Foreman, 240 F.R.D. at 536.
Identical to Foreman, the Rhode Island Plaintiffs’ Amended Complaint alleges that the
Defendants’ policies, patterns, practices or customs deprived them of their rights to have
“ foster care maintenance payments paid to the foster parents or foster care providers with
whom the child is placed that cover the actual cost of (and the cost of providing) the
Plaintiff child's food, clothing, shelter, daily supervision, school supplies, reasonable
travel to visitation with family, and other expenses.” Amended Complaint at ¶231.
The Defendants submit that the Foreman Court correctly reasoned that Plaintiffs
failed to satisfy the first element of the Blessing test as:
[f]oster children do not directly receive the benefit of a claim brought under §672, and while adequate foster care maintenance payments may enhance the likelihood of increasing the available pool of foster parents, such indirect benefits do not support a private right of action in favor of the named plaintiffs. See Blessing, 520 U.S. at 344-345, 117 S.Ct. 1353 (holding that compliance with Title IV-D's detailed requirements for state
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data processing systems and staffing in exchange for federal funding of the state's child support payment collection system did not create a federal right enforceable against the state under §1983). The link between increased foster care maintenance payments and the services provided to any particular child “ is far too tenuous” to support the notion that Congress meant to give each and every Nebraska juvenile in foster care a right to have foster care providers paid at a sufficient level. See Blessing, 520 U.S. at 345, 117 S.Ct. 1353. For the purpose of determining if a federal private right of action exists, the named plaintiffs are not the intended beneficiaries of 42 U.S.C. §§671(a)(1), 672 [(a) – (c)], and 674(4)(A).
Id. at 539-540. The Defendants further submit that the Foreman Court correctly reasoned
that Plaintiffs failed to satisfy the second element of the Blessing test as:
… the plaintiffs' claims were indistinguishable from the type of claims asserted in [Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 110 S.Ct. 2510 (1990)]. Wilder held that under federal Medicaid statutes and regulations, health care providers had an enforceable right to reimbursement at “ reasonable and adequate rates,” but the statutes and regulations under consideration in Wilder included specific factors to be considered in determining the methods for calculating rates. Wilder, 496 U.S. at 519, 110 S.Ct. 2510. For example, Wilder noted: [W]hen determining methods for calculating rates that are reasonably related to the costs of an efficient hospital, a State must consider: (1) the unique situation (financial and otherwise) of a hospital that serves a disproportionate number of low income patients, (2) the statutory requirements for adequate care in a nursing home, and (3) the special situation of hospitals providing inpatient care when long-term care at a nursing home would be sufficient but is unavailable.
Wilder, 496 U.S. at 520 n.17, 110 S.Ct. 2510. Suter, decided two years later, noted that the specific statutory and regulatory methods for calculating rates in Wilder supported finding a private right of action for the health care providers. However, no private right of action existed in Suter because §671(a)(15) and its regulations provided no guidance as to how the “ reasonable efforts” required under §671(a)(15) were to be measured.
With respect to “ foster care maintenance payments,” neither §672 nor the definition of that term in §675(4)(A) provide any language for discerning how rates should be set for paying foster care providers the “ cost” of caring for a foster child, and in the case of institutional care, “‘ the reasonable costs of administration and operation of such institution as are necessarily required’ to care for a foster child.” 42 U.S.C. §675(4)(A). ….
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[The plaintiffs cite no specific regulations governing the calculation of foster care maintenance payments.] …. [L]ike §671(a)(15), and in accord with the analysis of Suter, the plaintiffs' asserted right to foster care maintenance payments is too “ vague and amorphous” to support a federal right enforceable under §1983. Compare ASW v. Oregon, 424 F.3d 970, 975-76 n.9 (9th Cir.2005)(holding §673 created an individual right to adequate adoption assistance payments where the statute required an individualized process with each family to determine the amount by mutual agreement with the state which could be readjusted only “ with the concurrence of the adopting parents, depending upon changes” in the circumstances. “ Unlike foster care maintenance payments, codified in a standardized rate schedule, § 673(a)(3) explicitly creates a right to individualized payment determinations for adoption assistance payments.” Id. at 976 n.9). Id. at 540-541. Accordingly, Plaintiffs’ claims brought under 42 U.S.C. §§ 671(a)(1),
672(a)-(c) and 675(4)(A) should be dismissed under Rule 12(b)(6).
iii. 42 U.S.C. §671(a)(10) - (11).
Identical to Foreman, the plaintiffs allege a private right of action under
§671(a)(10)-(11). The Defendants submit that the Foreman Court properly found that
plaintiffs failed to satisfy the second element of the Blessing test and the claims should be
dismissed pursuant to Rule 12(b)(6). The Defendants submit that the instant allegations
should similarly be dismissed.
42 U.S.C. §671(a)(10) requires federally approved state plans to provide for the “ establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes,” and to provide that “ the standards so established shall be applied by the State to any foster family home or child care institution receiving funds....” $2 U.S.C. § 671(a)(11) requires periodic review of these standards.
Similar to Foreman, the Plaintiffs' Amended Complaint alleges the defendants violated
and continue to violate their right “to placement in foster homes or other settings that
conform to reasonable professional standards and are subject to a uniformly applied set of
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standards.” Amended Complaint, ¶ 231.
The Defendants submit that the Foreman Court correctly reasoned that Plaintiffs
failed to satisfy the second element of the Blessing test as:
Section §671(a)(10) does not create an individual federal right enforceable under §1983. White by White v. Chambliss, 112 F.3d 731, 739 (4th Cir.1997).
The requirement that a state's plan be “ reasonably in accord with recommended standards of national organizations,” is no more specific than section 671(a)(15)'s “ reasonable efforts” requirement. Furthermore, the AACWA provides no “ statutory guidance” to clarify the meaning of the requirements of 671(a)(10). Lastly, section 671(a)(10) is enforceable through the same alternative enforcement mechanism provided for section 671(a)(15). As the Supreme Court noted in Suter, “ [t]he Secretary [of Health and Human Services] has the authority to reduce or eliminate payments to a State on finding that the State's plan no longer complies with § 671(a) or that ‘ there is a substantial failure’ in the administration of a plan such that the State is not complying with its own plan.” ... Suter thus forecloses the argument that section 671(a)(10) of the AACWA provides the source for an enforceable right through section 1983. White, 112 F.3d at 739. See also Yvonne L., By and Through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 889 (10th Cir.1992)(holding § 671(a)(10)'s reference to “ standards of national organizations concerned with standards for such institutions or [foster] homes,” ... “ is the type of vague and amorphous language identified in Wilder, 110 S.Ct. at 2517, and Wright, 479 U.S. at 431-32, 107 S.Ct. at 774-75, that cannot be judicially enforced.” ); Olivia Y., 351 F.Supp.2d at 563 (holding § 671(a)(10) does not create a federal right enforceable under § 1983); Charlie H. v. Whitman, 83 F.Supp.2d 476, 491 (D.N.J.2000)( “ 42 U.S.C. § 671(a)(10) is too vague and amorphous under the Blessing test to be enforced pursuant § 1983.” ); Whitley v. New Mexico Children, Youth & Families Dept. 184 F.Supp.2d 1146, 1165 (D.N.M.2001)(“ [T]he language of § 671(a)(10) ... [is] too vague and amorphous to support a cause of action under § 1983.” ); Del A. v. Roemer, 777 F.Supp. 1297, 1310 (E.D.La.1991)(§ 671(10)'s “ provision requiring placement in foster homes and institutions that are ‘ reasonably in accord with’ national standards is vague and unenforceable.” ).
Id. at 541-542. Accordingly, Plaintiffs’ claims brought under 42 U.S.C. §§ 671(a)(10)-
(11) should be dismissed under Rule 12(b)(6).
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iv. 42 U.S.C. §671(a)(22).
Identical to Foreman, the plaintiffs allege a private right of action under
§671(a)(22). The Defendants submit that the Foreman Court properly found that
plaintiffs’ claim was too amorphous and should be dismissed pursuant to Rule 12(b)(6).
The Defendants submit that the instant allegations should similarly be dismissed.
Section 671(a)(22) requires the State to develop and implement standards to ensure that children in foster care placements are provided “ quality services that protect the safety and health of the children.”
Id. at 542. Verbatim from Foreman, the plaintiffs allege the defendants' policies and
practices violate the “ right of each Plaintiff child to services that protect the child's safety
and health.” Amended Complaint, ¶ 231. The Defendants submit that the Foreman
Court correctly reasoned that:
Section 671(a)(22) contains no definition or criteria for determining whether the state is providing “ quality services” to the child. The language of §671(a)(10) is too vague and amorphous to support a cause of action under §1983. Whitely, 184 F.Supp.2d at 1164-65.
Id. As such, Plaintiffs' claim under §671(a)(22) should be dismissed under Rule 12(b)(6).
v. 42 U.S.C. §§ 671(a)(16) and 675(5)(D)-(E).
Similar to Foreman, the plaintiffs allege a private right of action under
§671(a)(16) and §675(5)(D)-(E). The Defendants submit that the Foreman Court
properly found that claims should be dismissed pursuant to Rule 12(b)(6). The
Defendants submit that the instant allegations should similarly be dismissed.
42 U.S.C. §671(a)(16) requires that all federally approved state plans provide “ for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provide[ ] for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.” The term “ case plan” means a written document which
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includes: (A) a description of the type of home or institution in which a child is to be placed and the reasons for that decision; (B) a plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents; (C) to the extent available and accessible, the health and education records of the child; (D) where appropriate, for a child age 16 or over, a written description of the programs and services which will help such child prepare for the transition from foster care to independent living; and (E) in the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship.
***
42 U.S.C. § 675(5)(D) requires that all case review plans include a procedure assuring that a child's health and education record is reviewed, updated, and supplied to the child's foster parent or foster care provider at the time of each placement. 42 U.S.C. § 675(5)(E) requires case review plans to include procedures which acknowledge that in the absence of a compelling reason, a relative placement, or the potential for reunification, petitions to terminate parental rights must be filed under certain circumstances and within certain time frames.
Id. at 542-543. The Plaintiffs allege that the Defendants policies and practices violate
their rights to “timely written case plans containing mandated elements” and “have health
and educational records reviewed, updated, and supplied to foster parents or foster care
providers with whom the child is placed at the time of placement.” Amended Complaint
¶231.
Moreover, the plaintiffs' claims under §§ 671(a)(16) and 622 fail the first prong of the Blessing test). Under 42 U.S.C. § 1320a-2, the Secretary “ in consultation with the State agencies administering the State programs ... shall promulgate regulations for the review of such programs to determine whether [they] are in substantial conformity with-(1) State plan requirements under such parts B and E, (2) implementing regulations promulgated by the Secretary, and (3) the relevant approved State plans.”
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42 U.S.C. § 1320a-2. Section 1320a-2 requires the regulations to specify a timetable for conformity reviews of State programs, including when the initial review will occur, when any follow up review will occur if the state program is not in substantial conformity, and the schedule for less frequent reviews if the state program is in substantial conformity. The regulations must address the criteria used to measure conformity, and the withholding of federal funds when a state program does not substantially conform. 42 U.S.C. § 1320a-2 (1-4).
Federal statutes requiring operation of a program in “ substantial compliance” with federal law are not intended to benefit individuals, and cannot create federal rights. Blessing, 520 U.S. at 343, 117 S.Ct. 1353. Blessing held that a provision in Title IV-D of the Social Security Act which required a state receiving federal child-welfare funds to “ operate its child support program in ‘ substantial compliance’ with Title IV-D was not intended to benefit individual children and custodial parents, and therefore [did] not constitute a federal right.” Blessing, 520 U.S. at 343, 117 S.Ct. 1353. [T]he requirement that a State operate its child support program in “ substantial compliance” with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a State's Title IV-D program. Thus, the Secretary must look to the aggregate services provided by the State, not to whether the needs of any particular person have been satisfied.
Blessing, 520 U.S. at 343, 117 S.Ct. 1353. Based on that determination, the Secretary can increase the frequency of audits and reduce the state's federal grant to induce or improve the state's systemwide performance level, both of which are reasonable means for enforcing a Spending Clause statutory scheme. Blessing, 520 U.S. at 343-44, 117 S.Ct. 1353.
Though the case plans and reviews contemplated under §§ 622 and 671(a)(16) are specific to each child, Congress expects the states to “ substantially comply” with these statutes in exchange for federal funds. 42 U.S.C. §§ 622(b)(10)(B), 671(a)(16), 675(1), and 675(5)(B), (D), and (E) have an “ aggregate” focus. They are not concerned with “ whether the needs of any particular person have been satisfied,” and they cannot “ give rise to individual rights.” Gonzaga, 536 U.S. at 288-289, 122 S.Ct. 2268. Where the federal statute focuses on the aggregate practices of the states in establishing reasonable Medicaid services and not on individual entitlement to medical services, the first requirement of the Blessing test is not met. Lankford, 451 F.3d at 509.
Id. at 542-544. Accordingly, Plaintiffs' claims under 42 U.S.C.§§671(a)(16) and
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675(5)(D)-(E) should be dismissed under Rule 12(b)(6).
vi. 42 U.S.C. §622(b)(8)(A)(ii)-(iii)
An allegation not raised in Foreman, the plaintiffs allege a private right of action
under 42 U.S.C. §622(b)(8)(A)(ii)-(iii). The Defendants submit that this claim should be
dismissed as it fails to satisfy the first and second elements of the Blessing test.
Section 622(b)(8)(A)(ii)-(iii) requires that all federally approved state plans:
(8) provide assurances that the State – (A) is operating, to the satisfaction of the Secretary – (i) a statewide information system from which can be readily determined the status, demographic characteristics, location, and goals for the placement of every child who is (or, within the immediately preceding 12 months, as been) in foster care; (ii) a case review system (as defined by section 675(5) of this title) for each child receiving foster care under the supervision of the State; (iii) a service program designed to help children(I) where safe and appropriate, return to families from which they have been removed; or (II) be placed for adoption, with a legal guardian, or, if adoption or legal guardianship is determined not to be appropriate for a child, in some other planned, permanent living arrangement, which may include a residential educational program.
The Plaintiffs allege that the Defendants policies and practices violate their rights to “a
case review system to ensure the implementation of “case plans” and “to services to
facilitate the child’s return to his family home or a permanent placement of the child”.
Amended Complaint ¶231. As previously stated in response to another section, “[f]ederal
statutes requiring operation of a program in ‘substantial compliance’ with federal law are
not intended to benefit individuals, and cannot create federal rights. Blessing, 520 U.S. at
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343, 117 S.Ct. 1353.” Foreman, 240 F.R.D. at 542-544. This provision is not intended to benefit individual children and, therefore, does not constitute a federal right. Blessing, 520 U.S. at 343, 117 S.Ct. 1353. It does not create an individual entitlement to services; but rather, is simply a yardstick for the Secretary to measure the systemwide performance of a state's plan. Foreman, 240 F.R.D. at 543-544. Thus, plaintiffs’ claim under 42 U.S.C. §622(b)(8)(A)(ii)-(iii) fails to satisfy the first element of the Blessing test.
Additionally, plaintiffs’ claim under §622(b)(8)(A)(ii)-(iii) also fails the second prong of the Blessing test. Although the section may talk about a “service program” and “safe and appropriate” are too “vague and amorphous” to create a private remedy sought. Suter, 503 U.S. at 362-364, 112 S.Ct. 1360; cf Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 25, 101 S.Ct. 1531, 1544, 67 L.Ed.2d 694(1981)(“It is difficult to know what is meant by ‘appropriate treatment’ in the ‘least restrictive setting,’ and it is unlikely that a State would have accepted federal funds had it known that it would be bound to provide such treatment.”)
vii. 42 U.S.C. §622(b)(15) The plaintiffs allege a private right of action under §622(b)(15). The Defendants submit that this claim should be dismissed as they do not create an enforceable right under §1983.
Section §622(b)(15) requires that all federally approved state plans “describe how the State actively consults with and involves physicians or other appropriate medical professions in (A) assessing the health and well-being of children in foster care under the responsibility of the State; and (B) determining appropriate medical treatment for the children. The Plaintiffs allege that the Defendants policies and practices violate their
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rights to “services that protect the children’s safety and health”. Amended Complaint
¶231.
Once again, this claim fails to satisfy the first and second elements of the Blessing
test. As explained in response to previous allegations brought under the AACWP,
§622(b)(15) does not create an individual enforceable right. It once again speaks to the
content of the state plan rather than defining a right. It is yet another “yardstick” for the
Secretary to use when evaluating a state’s plan that is tied to federal funding.
§622(b)(15) does not speak in clear and unambiguous language and defines a right as is
required by Blessing and its progeny. Thus, plaintiffs’ claim under §622(b)(15) should
be dismissed under Rule 12(b)(6).
viii. 42 U.S.C. §629a(a)(7)-(8)
The plaintiffs allege a private right of action under 42 U.S.C. §629a(a)((7)-(8) – a
claim not raised in Foreman. The Defendants submit that this claim should be dismissed
as the section is definitional in nature and does not create a right enforceable under
§1983.
Section §629a(a)(7)-(8) states:
(a) In general As used in this subpart:
(7)Time-limited family reunification services A. In general The term “time-limited family reunification services” means the services and activities described in subparagraph (B) that are provided to a child that is removed from the child’s home and placed in a foster family home or a child care institution and to the parents pr primary caregiver of such a child, in order to facilitate the reunification of the child safely and appropriately within a timely fashion, but only during the 15-month period that begins on the date that the child, pursuant to section 675(5)(F) of this title is considered to have entered foster care.
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B. Services and activities described The services and activities described in this subparagraph are the following:
(i) Individual, group, and family counseling. (ii) Inpatient, residential, or outpatient substance
abuse treatment services. (iii) Mental health services. (iv) Assistance to address domestic violence. (v) Services designed to provide temporary
child care and therapeutic services for families, including crisis nurseries. (vi) Transportation to or from any of the services and activities described in this subparagraph.
8. Adoption promotion and support services The term “adoption promotion and support services” means services and activities designed to encourage more adoptions out of the foster care system, when adoptions promote the best interests of children, including such activities as pre- and postadoptive services ad activities designed to expedite the adoption process and support adoptive families.
The Plaintiffs allege that the Defendants policies and practices violate their rights 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,” “to planning and services to obtain permanent
placement, including documentation of steps taken to secure permanency” and “services
to facilitate a child’s return to his family home or the permanent placement of a child.”
Amended Complaint ¶ 231.
Section 629a(a)((7)-(8) are definitional provisions and, as such, “alone cannot and
do not supply a basis for conferring rights enforceable under §1983”. 31 Foster
Children, 329 F.3d at 1271 (citing Gonzaga, 536 U.S. at 280, 122 S.Ct. at 2273).
Accordingly, Plaintiffs' claims under 42 U.S.C. §629a(a)((7)-(8) should be dismissed
under Rule 12(b)(6).
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V. CONCLUSION “[C]hild welfare and protection is an important state interest, the injunctive relief at issue in this case, if granted, will interfere with the ongoing jurisdiction and proceedings for each plaintiff in the … [Rhode Island Family Court], and that court provides an adequate opportunity to raise the federal claims asserted in this action.” Foreman, 240 F.R.D. at 532. Thus, the Younger Doctrine compels abstention and a dismissal of this case. Additionally, the relief requested actually places this Court in a position of reviewing and reversing state Family Court decisions and orders addressing the named plaintiff children. Thus, the Rooker-Feldman Doctrine compels abstention and a dismissal of this case. Moreover, the claims of Briana, Alexis and Clare are clearly moot, the three self-proclaimed “next friends” do not have standing and the AACWA based claims do not confer a private right of action enforceable under 42 U.S.C. §1983.
Wherefore, the Defendants pray that this Court grant their motion to dismiss.
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Respectfully submitted DEFENDANTS By their Attorney,
PATRICK C. LYNCH ATTORNEY GENERAL
/s/ James R. Lee JAMES R. LEE (4305) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
/s/ Brenda D. Baum BRENDA D. BAUM (5184) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
On Behalf of PATRICIA MARTINEZ, in her Official Capacity as Director of the Department of Children, Youth and Families
/s/ Kevin Aucoin KEVIN AUCOIN (3019) Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903 Tel: (401) 528-3579 Fax: (401) 525-3566 Kevin.Aucoin@dcyf.ri.gov
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On behalf of JANE HAYWARD, in her Official Capacity as Secretary of the Executive Office of Health & Human Services,
/s/ Jane Morgan JANE MORGAN (4024) Assistant Director of Legal Services R.I. Department of Elderly Affairs Benjamin Rush Building 35 Howard Avenue Cranston, RI 02920 Tel: (401) 462-0524 Fax: (401) 462-0503 jmorgan@dea.state.ri.us
CERTIFICATION
I hereby certify that pursuant to Court Order 33 I have electronically mailed the foregoing document on this 17th day of October 2007 to the attorney(s) of record listed below:
John William Dineen, Esq. jwdineen1@yahoo.com
Jametta O. Alston, Esq. jalston@gw.doa.state.ri.us
Susan Lambiase slambiase@childrensrights.org
Vernon Winters vern.winters@weil.com
Marcia Robinson Lowry mlowry@childrensrights.org
/s/ Brenda D. Baum
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., by Next Friend

:

Gregory c. Elliot; CAESAR S., by Next

:

Friend Kathleen J. Collins; DAVID T., by

:

Next Friend Mary Melvin; BRIANA,

:

ALEXIS, CLARE and DEANNE H.,

:

by Next Friend Gregory C. Elliott; and

:

DANNY and MICHAEL B., by Next Friend :

Gregory C. Elliott; for themselves and those :

similarly situated

:

:

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 :

C.A. 07-241L

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FED.
R. CIV. P. 12(b)(1)

On January 24, 2008, this Honorable Court offered the parties the opportunity to submit legal memoranda analyzing the testimony of the three individuals calling themselves the “next friends” of Sam and Tony, Danny and Michael, Briana, Alexis, Clare and Deanna, Daniel T. and Caesar. The memoranda may also address any other issue relating to Fed.R.Civ.P. 12(b)(1). The Defendants submit this memorandum, in addition to their previously filed pleadings, in support of their position that the Amended Complaint should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction.

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A. Professor Gregory Elliott, Ms. Mary Melvin and Ms. Kathleen Collins Failed To Demonstrate That they Should be Permitted to File and Pursue This Legal Action As The “Next Friends” of Sam and Tony, Danny and Michael, Briana, Alexis, Clare and Deanna, Daniel T. and Caesar.
It is clear from the testimony of the self-proclaimed “next friends” that they have no personal knowledge regarding the named children’s current placement, treatment and services and, therefore, they cannot speak to whether or not their decision to involuntarily subject those children to the jurisdiction of this Court is in each child’s best interest. The supposed “next friends” have never seen any Family Court Orders addressing the children’s placement or services. They have never seen DCYF case plans submitted to the Family Court that detail the children’s lives. The self-proclaimed “next friends” have not spoken with the children’s relatives or the Family Court appointed attorneys whose representation of the children they call into question. They have not confirmed the veracity of the allegations in the Amended Complaint or verified whether the needs and best interests of the children are being met. Despite this complete lack of personal information, the self-proclaimed “next friends” ask this Court to accept their “decision” that the children should be subjected to a federal lawsuit, which may compel them to publicly testify, that they can determine what is in the best interest for the children they’ve never met and that their lack of a significant relationship should not prohibit them from pursuing this case.
i. Professor Gregory Elliott Professor Gregory Elliott filed this lawsuit on behalf of siblings Sam and Tony M., siblings Briana, Alexis, Clare1, and Deanna H. and siblings Danny and Michael B. See
1 On September 24, 2007, the Family Court approved the adoption of Briana, Alexis and Clare. Briana, Alexis and Clare’s adoption contradicts the allegations in the Amended Complaint that
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Amended Complaint at ¶¶ 34, 82 and 96. Professor Elliott, an associate professor of sociology at Brown University, seeks to be the legal “next friend” of five (5) of the named children despite his lack of real-life connection with any of the children that he has subjected to federal court litigation. Professor Elliott admitted that he does not know the real names of sisters Briana, Alexis, Clare or Deanna. See Exhibit H: Transcript January 24, 2008 hearing at Page 12. He admitted that he does not know the real names of brothers Sam and Tony. Id. He admitted that he does not know the real names of brothers Danny and Michael. Id. Professor Elliott has never met any of these children. Id. He has never met any of the children’s natural relatives. Id. He has never communicated with anyone who has legal responsibility for the children, including the attorney appointed by the Family Court to protect the children’s best interest. Id. Based on the foregoing facts, Professor Elliott cannot make any representation that the children, their natural relatives, foster parents or CASA attorneys support the filing of this lawsuit on the children’s behalf.
Professor Elliott has never reviewed any medical records for Briana, Alexis, Clare, Deanna, Sam, Tony, Danny and Michael. Id. Professor Elliott has never reviewed the children’s Family Court files. Id. at 12-13. He has never reviewed the children’s DCYF records. Id. at 13. He has never reviewed the children’s educational records. Id. Professor Elliott admitted that he did not know the names of any of the Family Court judges who oversee each child’s case. Id. Professor Elliott had no idea where Deanna was living or whether she was in a pre-adoptive home. Id. at 14.
“DCYF has left Briana, Alexis and Clare to languish without appropriate permanency services in an unlicensed and overcrowded foster home which DCYF knows will not be permanent and in which their safety is in constant jeopardy.” Amended Complaint ¶80
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Despite never meeting the children or reviewing their medical records, school records, DCYF case plans or Family Court orders, Professor Elliot claimed that “while there might be some discomfort that would involved, the amount of stress or discomfort that would be involved in their participation is so much less than the circumstances that they are under now that I think it would be important for them to take part in this case.” Id. at page 11. Professor Elliot’s willingness to submit five children ranging in age from 1½ years old to 12 years old to federal court proceedings and discovery is an extremely presumptuous statement when he has absolutely no knowledge regarding the children’s current placement or services and the only documents he has reviewed are the untested allegations in the Complaint and the Amended Complaint. In fact, subjecting these children to this lawsuit could just as well have a detrimental effect on them and their current placements. Professor Elliot, of course, has no way to evaluate the amount of “stress and discomfort” those actions would inflict on these children.
ii. Ms. Mary Melvin The second “next friend” is Mary Melvin who seeks to pursue this lawsuit on behalf of fourteen (14) year old David T. Ms. Melvin served as David T.’s foster parent more than ten (10) years ago and took him for a few day outings immediately after the foster placement ended. Id. at 16, 22. She acknowledged that she has not had any contact with David T. for approximately ten years. Id. Ms. Melvin has not had any contact with any of David’s natural relatives for the past ten years. Id. at 23. Ms. Melvin has had no access to David’s DCYF records or Family Court’s records for David for the past ten years. Id. at 22-23. She has not seen David’s medical or educational records for the past ten years. Id. at 23. Ms. Melvin does not know even where David currently resides or where he is attending school. Id. at 26-27.
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During the time Ms. Melvin served as David’s foster mother she drove him to the Family Court but did not have direct contact with the Family Court. Id. at 23. Ms. Melvin has never raised any complaints with the Family Court regarding David, while serving as his foster mother or any time thereafter. Id. at 23-24. Based on her own personal knowledge of David, she has no complaint with the way the Family Court handled his case. Id. at 24. Ms. Melvin was not aware that the Family Court had appointed legal counsel to protect David’s best interest. Id. at 25. She has no idea what documents the Family Court reviewed for David over the last year. Id. at 26. She has no criticism of any decisions the Family Court has made for David over the last year. Id. Ms. Melvin was aware that the Family Court could also help David. Id. at 28.
Ms. Melvin indicated that her understanding of this lawsuit was that it “was about making things better for the children, like David.” Id. at 18-19. She testified that if David didn’t understand what the lawsuit was about she would try to help him understand. Id. at 20. However, Ms. Melvyn did not have any idea whether or not this federal court action could affect David’s schooling. Id. at 27. Additionally, Ms. Melvin testified that she did not see how this action could affect David’s placement. Id. at 28. Based on her testimony, it is clear that Ms. Melvin has never spoken with David, his natural relatives or his CASA attorney regarding the institution of this lawsuit and cannot represent to this Court that they support the filing of this lawsuit on David’s behalf. Additionally, based on her testimony, it is not certain that Ms. Melvin is cognizant of the specific civil rights violations alleged, what action is sought on David’s behalf or that David could be compelled to testify publicly or be bound by adverse rulings of this Court.
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iii. Ms. Kathleen Collins Kathleen Collins seeks to be the next friend for Caesar. Ms. Collins serves as a school psychologist for two elementary schools in the Providence School Department. Id. at 31-32. During the 2006-2007 school year, Ms. Collins had thirty (30) to thirty-six (36) children to whom she provided services and counseling. Id. at 45. In addition, Ms. Collins had “some responsibility” for approximately seven hundred (700) school children. Id. at 45-46. Caesar was a student in one of these schools for the 2006-2007 school year. Id. at 33-35. During the entire 2006-2007 school year, Ms. Collins worked with Caesar approximately twelve times on an individual basis, assisted in evaluating him for a special education referral and participated in an individualized planning meeting. Id. at 34. Ms. Collins stated that she observed Caesar at school. Id. Ms. Collins did not have any idea of the details that brought Caesar into DCYF’s care. Id. at 52. Ms. Collins admitted that the first time she met Caesar was in September 2006. Id. at 46. She had no interaction with him prior to that date. Id. She had no involvement with DCYF’s records relating to Caesar prior to that date and had no involvement with this child’s medical records prior to that date. Id. She did not know Caesar’s guardian ad litem. Id. at 46-47. Ms. Collins did not have any involvement with the Family Court during the year Caesar was part of her caseload. Id. at 47. She never brought a complaint to the Family Court about Caesar. Id. Ms. Collins had contact with Caesar’s DCYF caseworker approximately five (5) times during the school year. Id. at 47. The contact concerned “largely planning for special education, to express concerns for his needs and what DCYF’s role might be in addressing some of those needs that the school could not address.” Id. at 53. When asked whether she voiced complaints
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to Caesar’s caseworker, Ms. Collins responded that she “made suggestions as to what his needs might be.” Id. at 48. Ms. Collins specifically requested that DCYF “seek counseling, a private or at least a community-based counseling service for him, some therapy to deal with some of his attachment issues and difficulties with his behaviors.” Id. at 54. When questioned by Plaintiffs’ counsel whether those suggestions were ever taken up, Ms. Collins responded “I received an assent from the worker that she would seek those services, and I believe that she did make an attempt to garner those services.” Id. at 54.
During that school year Ms. Collins also had contact with the Office of Child Advocate – an organization she knew was an available resource to her as a school psychologist if she saw an issue with a child in DCYF custody. Id. at 48. Her contact with the Office of Child Advocate was not with regards to Caesar. Id. at 48. Ms. Collins also acknowledged her familiarity with the CANTS hotline – a DCYF phone number that would allow her to report allegations of abuse or neglect of a child. Id. at 48-49. In fact, she has used the CANTS hotline before; however, she never called the CANTS hotline with regards to Caesar. Id.
The last time Ms. Collins had contact with Caesar was in June 2007. Id. Since that time Ms. Collins has not seen any DCYF records, medical records or educational records for Caesar. Id. She has not had any contact with the Family Court relating to Caesar. Id. She has no personal knowledge of how Caesar is doing in his current placement. Id. at 50. Ms. Collins has no personal knowledge of Caesar’s current medical treatment plan. Id. Ms. Collins has no personal knowledge of Caesar’s current educational plans. Id. at 50. She has no idea what the Family Court did or did not approve for Caesar while he was part of her school caseload. Id. at
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53. She has no idea what the Family Court reviewed in arriving at its decisions for Caesar during that school year. Id.
Ms. Collins summarized her “concerns” for Caesar, indicating that when he was five years old he did not have a permanent home and needed care and wasn’t getting it (which seems to be a strange statement in light of her admission that she has no knowledge of what care or services Caesar is currently receiving). Id. at 41. Ms. Collins indicated that she came to Federal Court because she wanted some things for Caesar. Id. at 52. However, she has never addressed those “things” with the Family Court. Id. As such, she has no idea whether the Family Court would be responsive to what she wanted for Caesar. Id. Moreover, from Ms. Collins’ testimony it is clear that the “suggestion” that she did give to Caesar’s DCYF caseworker for counseling was pursued. Moreover, it is clear from Ms. Collins testimony that she has not spoken with Caesar, his natural relatives, his foster parents or guardian ad litem and cannot represent to this Court that they support the filing of this lawsuit on Caesar’s behalf.
iv. Legal Analysis of “Next Friends” Despite their lack of contact and knowledge, Plaintiffs Elliott, Melvin and Collins ask this Court to allow them to pursue this lawsuit on behalf of these seven children as their “next friends” pursuant to Fed.R.Civ.P. 17(c). Rule 17(c) provides that: Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other orders as it deems proper for the protection of the infant or incompetent person.
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It is undisputed that Professor Elliott, Ms. Melvin and Ms. Collins are not general guardians, committees, conservators, guardians ad litem or other like fiduciary for the seven children. Thus, they have proclaimed themselves to be “next friends” solely to institute this lawsuit. Although Rule 17(c) does not expressly define “next friend”, in Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990) the United States Supreme Court provided guidance as to the characteristics a “next friend” should possess. The Whitmore Court explained that “[n]ext friend’ standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another.” 110 S.Ct. at 1727. In determining “next friend” standing a court should consider the “next friend’s” explanation why the real party in interest cannot appear on his own behalf to prosecute the action and whether the “next friend” is truly dedicated to the best interests of the person on whose behalf he seeks to litigate. Id. Federal Courts have suggested a third requirement that “a ‘next friend’ must have some significant relationship with the real party in interest.” Id. “The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify jurisdiction of the court.” Id.
This Court has substantial discretion on whether or not to appoint a “next friend” for an infant under Rule 17(c). See Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281, 286 (1st Cir. 1982). It is clear that these three individuals do not have a “significant relationship”, or in fact, any current relationship, with the children they seek to represent. Plaintiffs have asserted that it is the very nature of being in the foster care system that precludes the establishment of a “significant relationship.” Defendants dispute that these children lack “significant relationships” in their lives – as is evidenced by the fact that Briana, Alexis and Clare were adopted. However, before even reaching the issue of whether a “significant
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relationship” exists with the children, Professor Elliott, Ms. Collins and Ms. Melvin must satisfy this Court that they are truly dedicated to the best interests of the children they either have never met or have no current contact with but on whose behalf they now seek to litigate. These three individuals fail to meet this burden.
Professor Elliott, Ms. Collins and Ms. Melvin have a total lack of knowledge of the children’s current lives. Professor Elliott, Ms. Collins and Ms. Melvin have not spoken to the seven children or their natural relatives regarding the filing of this lawsuit, the effect of it or what is sought to be accomplished for each individual child. Professor Elliott, Ms. Collins and Ms. Melvin have not voiced their concerns to the individual child’s CASA or guardian ad litem or before the Rhode Island Family Court. The one “suggestion” Ms. Collins did convey to Caesar’s DCYF caseworker was pursued. The total lack of knowledge as to the children’s current lives or independent verification of the allegations in the Amended Complaint undercut Professor Elliott, Ms. Collins and Ms. Melvin’s representations that they are truly dedicated to the best interests of the seven children. See Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 519-529 (D.Ned. 2007)(The United States District Court for the District of Nebraska held that “[t]here is also reason to question the “ good faith” motivation, initiative, fortitude, and dedication of these next friends to represent the named plaintiffs' interests. The record reflects that the next friends expended little, if any, effort to seek out sources and discover the current circumstances or the potential risk of harm faced by their assigned named plaintiff. They filed a complaint on behalf of the child without his knowledge; and as of the time their depositions were taken (at least three months after this suit was filed), they still lacked the information necessary to assess the state's current efforts on behalf of the child, and had little, if any, reliable information concerning the
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circumstances and suitability of the child's current placement. Whatever concerns they did have were not voiced to the juvenile court, guardians ad litem, county attorneys, HHS caseworkers, or the Foster Care Review Board. The evidence currently before me indicates that while each next friend may have sincere empathy for her named plaintiff's plight, her goal in this litigation is system change on behalf of others and not advocating the individual interests of her named plaintiff.” (Footnote omitted.))
The Defendants submit that the Amended Complaint should be dismissed. Professor Elliott, Ms. Collins and Ms. Melvin are not adequate “next friends” under Rule 17(c) or the United States Supreme Court’s analysis in Whitmore. Moreover, the appointment of a guardian ad litem does not cure the legal deficiencies of standing, lack of subject matter jurisdiction under Younger and Rooker-Feldman, mootness, or the Child Advocate’s legal inability to commence this lawsuit in federal court on behalf of the named children.
B. The Child Advocate Does Not Have The Authority To File Or Pursue This Case in Federal Court. The Child Advocate, Jametta Alston, chose to submit the ten (10) named Plaintiff
Children to the rigors of a federal court case. See Exhibit G: Transcript January 23, 2008 hearing at Page 5. There is no evidence that the natural relatives of the plaintiff children were informed of or agreed to have these children subjected to a federal lawsuit prior to its filing. There is no evidence that the children’s Family Court appointed attorneys, statutorily charged with representing their best interests, were informed or agreed that it would be in the best interest of these children to be subjected to a federal court lawsuit. The Rhode Island Family Court was never advised by the Child Advocate that ten children under its original and exclusive jurisdiction were to be subjected to a federal court lawsuit that would claim numerous of the
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Family Court’s rulings placed the children in harm’s way or permitted them to languish in foster care. Despite being encouraged by DCYF to make her concerns known to the Family Court at a hearing for three (3) of the named Plaintiff Children, Briana, Alexis and Clare, (See Exhibit F-1), Child Advocate Alston declined stating:
…the Child Advocate recognizes the Family Court’s authority to make decisions in individual cases and we will not interfere with the Court’s decision-making process. Based upon the information that the Department of Children, Youth and Families has access to review, the Office of the Child Advocate would assert that it is your executive duty to make appropriate decisions regarding the children’s permanency and safety as well as to fully inform the court and the children’s CASA attorney of the housing situation as it currently exists at the proposed placement; and any danger that may be presented by individuals living in the home of the maternal aunt as noted in the records maintained by the Department. See Exhibit F-2. Such a response is troubling when the Amended Complaint represents to this Court that “Briana, Alexis, Clare and Deanna have been and continue to be harmed,” Briana and Alexis were returned to a clearly unsuitable home environment, in which they suffered further neglect and possible sexual abuse and “DCYF has left Briana, Alexis and Clare to languish without appropriate permanency services in an unlicensed and overcrowded foster home which DCYF knows will not be permanent and in which their safety is in constant jeopardy.” See Amended Complaint ¶80. If these children were in harms way as is alleged in the Amended Complaint, the Family Court would have provided the Child Advocate with an immediate avenue to address and remedy it. Declining to take such action in order to pursue a more protracted process in Federal Court begs the question of whether securing the best interests of Sam and Tony, Danny and Michael, Deanna, Daniel T. and Caesar is the purpose of this lawsuit or are these children merely a vehicle to file a federal court action.
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In response to questioning from this Court, the Child Advocate claimed that Rhode Island General Laws, specifically §42-73-7, permits her to file a legal action on behalf of children in any court or jurisdiction of her pleasing. See Exhibit G: Transcript January 23, 2008 hearing at Pages 5-7. The Defendants disagree. The Child Advocate’s interpretation of R.I. Gen. Laws §42-73-7 is contrary to the tenets of statutory construction and results in a separation of powers issue. Accordingly, this Court must engage in statutory construction of R.I. Gen. Laws §42-73-7.
“A federal court that engages in the construction of a state statute must follow the state’s rules of statutory construction.” Huguenin v. Ponte, 29 F.Supp.2d 57, 63 (D.R.I. 1998). “Absent any guidance as to the construction of this particular provision of state law, the Court proffers a reading that is consistent with the canons of statutory construction as applied by the Supreme Court of Rhode Island.” Id. Under Rhode Island law, where the language of a statute is clear and unambiguous, a court is required to give the words their plain and ordinary meaning. O’Neil v. Code Commission for Occupational Safety and Health, 534 A.2d 606 (R.I. 1987). A rule of statutory construction is that “statutes relating to the same or similar subject matter should be construed such that they will harmonize with each other and be consistent with their general objective scope.” Blanchette v. Stone, 591 A.2d 785, 786 (R.I.1991). “This rule of construction applies even though the statutes in question [may] contain no reference to each other and are passed at different times.” Id. (quoting. State v. Ahmadjian, 438 A.2d 1070, 1081 (R.I.1981)) “Moreover, ‘[i]f a mechanical application of a statutory definition produces an absurd result or defeats legislative intent, this court will look beyond mere semantics and give effect to the purpose of the act.”’ Sorenson v. Colibri Corp., 650 A.2d 125, 129 (R.I. 1994)(quoting Labbadia v. State, 513 A.2d 18, 21 (R.I.1986)).
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Case 1:07-cv-00241-ML -LDA Document 55 Filed 02/15/08 Page 14 of 35 PageID #: 941
The Rhode Island Family Court has “exclusive original jurisdiction” over abused, neglected2 and dependent children. R.I. Gen. Laws §14-1-5. The Family Court retains such jurisdiction over such children until they reach eighteen years of age. R.I. Gen. Laws §14-1-6(a). The Rhode Island Legislature spoke in a clear and distinct voice in granting the Family Court such extensive control and authority over abused and neglected children.
Despite the plain language of R.I. Gen. Laws §14-1-5, the Child Advocate claims that the forum and jurisdiction to vindicate abused and neglected children is of her choosing based on R.I. Gen. Laws §42-73-7(6) which provides that “the child advocate shall perform the following duties .. [t]ake all possible legal action including, but not limited to programs of public education, legislative advocacy, and formal legal action to secure the legal, civil, and special rights of children subject to provisions of §42-73-9.1 and chapter 72 of this title.” The Child Advocate ignores the phrase “subject to the provisions of §42-73-9.1 and chapter 72 of this title” that ends subsection (6) of §42-73-7. This very important phrase limits the forum where the Child Advocate may bring suit.
In line with the plain and ordinary language of R.I. Gen. Laws §42-73-7(6), the Child Advocate may file a legal action on behalf of a child under R.I. Gen. Laws §42-73-9.1. Specifically, §42-73-9.1 provides that:
(a) In addition to the powers set forth in § 42-73-9, the child advocate, or his or her designee, shall have the power to commence in the superior court a civil action against the state pursuant to the provisions of chapter 25 of title 12 on
2 “Neglected” includes “abused” as it is defined as “a child who requires the protection and assistance of the [family] court when his or her physical or mental health or welfare is harmed or threatened with harm when the parents or guardian: (i) fails to supply the child with adequate food, clothing, shelter, or medical care, through financially able to do so or offered financial or other reasonable means to do so; (ii) Fails to provide the child proper education as required by law; or (iii) Abandons and/or deserts the child.” R.I. Gen. Laws §14-1-3(8).
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Case 1:07-cv-00241-ML -LDA Document 55 Filed 02/15/08 Page 15 of 35 PageID #: 942
behalf of any child the custody of whom has been assigned to any institution or agency under the control of the department of children, youth, and families or other private agency or provided in § 14-1-34. (b) Any judgment for compensation or order for settlement of the claim for compensation entered by the court pursuant to the provisions of § 12-25-3 shall be considered as the estate of the child for whose benefit the judgment or order is entered, to be held by the office as guardian of that compensation, and shall be deposited into a trust account established by the office for the purposes of distributing those funds to the child in accordance with the plan adopted by the family court pursuant to the provisions of § 14-1-35.1. Emphasis Added. Thus, Rhode Island law permits the Child Advocate to file a civil action in the Rhode Island Superior Court on behalf of a child and assist in the recovery under the "Criminal Injuries Compensation Act", Title 12, Chapter 25. In line with the plain and ordinary language of R.I. Gen. Laws §42-73-7(6), the Child Advocate may file a legal action on behalf of a child or children under chapter 72 of title 42. Chapter 72 repeatedly refers to the Rhode Island Family Court and its authority over abused and neglected children. Specifically, R.I. Gen. Laws §42-72-15 entitled the “Children’s bill of rights” provides, in pertinent part: (a) No child placed or treated under the supervision of the department in any public or private facility shall be deprived of any personal property or civil rights, except in accordance with due process.
* * (m) Any child aggrieved by a violation of the children's bill of rights may petition the family court for appropriate equitable relief. The family court shall have exclusive original jurisdiction, notwithstanding any remedy contained in chapter 35 of this title.
Emphasis Added. Moreover, Chapter 73, which creates the Office of Child Advocate and describes its powers and responsibilities, acknowledges the Family Court’s jurisdiction in §42-
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73-10, which provides: All records of the child advocate pertaining to the care and treatment of a child shall be confidential. Information contained in those records may not be disclosed publicly in any manner that would identify individuals, but records shall be available to persons approved, upon application for good cause, by the family court. Emphasis Added.
and §42-73-7 (8), which provides that the Child Advocate shall “[r]eview orders of the family court relating to juveniles with power to request reviews as required by the best interests of the child.”
If the legislature intended to empower the Child Advocate to bring suit on behalf of a child in any forum, it would not have specifically enumerated the Child Advocate’s power to take legal action in Superior Court in 42-73-9.1. Nor would have the legislature made specific references to the forum of Family Court in sections 42-73-10, 42-73-7(8), and 42-72-15(m). Thus, state law limits the Child Advocate’s power to take formal legal action on a child’s behalf in only these state court forums
As further evidence that Family Court is the appropriate jurisdiction for the Child Advocate to raise her concerns is the Rhode Island Supreme Court’s decision In re R.J.P., 445 A.2d 286 (R.I.1982). In that case, the child advocate filed a motion with the Family Court requesting authorization to file a petition alleging that the child R.J.P. was dependent, neglected and/or abused. 445 A.2d at 286. The Rhode Island Supreme Court held that the child advocate had the authority to file such a petition before the Family Court as he/she is an “appropriate person” under R.I. Gen. Laws §14-1-10. In arriving at its decision, the Supreme Court reasoned:
Although the Child Advocate is not specifically listed by designation in § 141-3(I), he is the head of an agency which meets the requirements set forth in § 141-3(I)(5). It is clear that the Office of Child Advocate was established for purposes similar to those specified in G.L.1956 (1969 Reenactment) §§ 8-10-2
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and 14-1-2. Therefore, we are of the opinion that the Legislature intended to include the Child Advocate among those who can bring information to the Family Court to initiate a preliminary investigation and those who can file a petition alleging that the child is dependent, neglected, and/or abused. Thus, the Child Advocate is an “appropriate person” for purposes of §§ 14-1-10 and 14-1-11. We reach this conclusion by relying upon the history of the statute and the reasons for the creation of the Office of the Child Advocate. We note that the Child Advocate is required by the Legislature “[t]o take all possible action * * * to secure and ensure the legal, civil and special rights of children * * *.” General Laws 1956 (1977 Reenactment) § 42-73-7(6), as enacted by P.L.1979, ch. 248, § 2. Also, the Legislature has specifically stated that the Child Advocate in performing his duties, one of which is the bringing of formal legal action on behalf of children, must act independently of DCF. Section 42-73-5. The trial justice therefore did not err in allowing the Child Advocate to file a petition alleging that R.J.P. was a dependent, neglected, and/or abused child.
Id. at 288. Emphasis Added. Based on the Rhode Island Supreme Court’s reasoning in In re R.J.P., and the basic tenets of statutory construction, the Family Court is the forum where the Legislature intended the Child Advocate to seek full legal redress for abused, neglected and/or dependent children as to placement, services, etc.
To interpret R.I. Gen. Laws §42-73-7(6) as permitting Child Advocate Alston to file a legal action in federal court in order to review Rhode Island Family Court’s decisions for abused and neglected children would result in a separation of powers quandary. In the context of the instant case, Child Advocate Alston is challenging the placements and services rendered to the seven named children. As such, Child Advocate Alston is, by the very essence, challenging the Family Court’s orders directing or approving the placements and services. Based on the foregoing statutory analysis, it is clear that the legislature empowered the Child Advocate, as a member of the executive branch independent of DCYF, to advocate for the children of Rhode Island in Family Court. As such, the Child Advocate’s pursuit of this federal lawsuit is an attempt to make an end run around the Family Court, thereby usurping the judicial branch’s
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authority. Interpreting §42-73-7(6) as the Child Advocate suggests is improper and violates separation of powers. See Taylor v. Place, 4 R.I. 324 (1856); In re Opinion of the Justices (Dorr), 3 R.I. 299 (1854)
Accordingly, based on the basic tenets of statutory construction and to avoid a separation of powers conflict, R.I. Gen. Laws §42-73-7(6) must be interpreted as granting the Child Advocate to take legal action before the Rhode Island Family Court and in the very limited circumstances of seeking recovery under the "Criminal Injuries Compensation Act" of title 12, chapter 25 before the Superior Court.
C. This Court Should Abstain Under The Younger Doctrine and Dismiss the Amended Complaint for Lack of Subject Matter Jurisdiction Pursuant Fed. R. C.P. 12(b)(1).
This Honorable Court lacks subject matter jurisdiction over the Plaintiffs’ Amended Complaint as the Younger Doctrine compels abstention. Federal injunctive relief issued in this case would most definitely interfere with not only the ongoing proceedings before the Rhode Island Family Court for each of the seven named children. Rhode Island’s child welfare system and the oversight and involvement of the Rhode Island Family Court are important state interests. The federal claims cited in the Amended Complaint could be raised before the Family Court.
One of the seminal cases calling for a Federal Court to abstain from interfering with a pending state court case is Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). “’Although Younger concerned state criminal proceedings, its principles are ‘fully applicable to noncriminal judicial proceedings when important state interests are involved.’” 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003(quoting Middlesex County Ethics Comm.
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v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982)). “’Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system ... evidence the state's substantial interest in the litigation.’” 31 Foster Children, 329 F.3d at 1274 (quoting Middlesex, 102 S.Ct. at 2521).
Under the Younger Abstention Doctrine, a federal court will abstain from assuming jurisdiction over a case when the requested relief would interfere (1) with an ongoing state judicial proceeding; (2) that implicates an important state interest; and (3) that provides an adequate opportunity for the federal plaintiff to advance his federal constitutional challenge. Rossi v. Gemma. 489 F.3d 26, 34-35 (1st Cir. 2007). This three-part test is customarily referred to as the “Middlesex analysis” and is derived from the United States Supreme Court decision in Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Where a case satisfies this three part test a district court has no discretion to provide injunctive relief and must abstain. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 816 fn22, 96 S.Ct. 1236,1 246 fn.22, 47 L.Ed.2d 483 (1976).
Before reaching this three-part test, Plaintiffs attempt to disrupt the Court’s Younger analysis by claiming that this lawsuit does not affect comity or implicate enforcement proceedings. These arguments are clearly wrong. The Plaintiffs erroneously claim that comity is not affected and Younger abstention is inappropriate because Rhode Island voluntarily agreed to federal oversight of its foster care system in exchange for federal funding. Defendants addressed this argument and explained its deficiencies in their Reply Memorandum at pages 30-31. Moreover, Plaintiffs’ characterization of this lawsuit is inaccurate. Plaintiffs continuously
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choose to ignore the Family Court’s active role in the placements, services, reunification efforts and visitation decisions, the very subjects that the Amended Complaint alleges violated the named children’s constitutional rights.
The Plaintiffs also allege that the ongoing child welfare proceedings before the Rhode Island Family Court are not the “enforcement proceedings” envisioned by Younger. As explained more fully in the Defendants’ Reply Memorandum at pages 32 to 38, both the United States Supreme Court and the First Circuit have likened state court actions surrounding allegations of abuse and neglect to “enforcement proceedings.” See Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994, ___ (1979)(recognizing applicability of Younger doctrine to cases concerning state proceedings for temporary removal of child in child-abuse context); McLeod v. Maine Department of Human Services, 229 F.3d 1133, 2000 WL 869512 (1st Cir. 2000); see also Malachowski v. City of Keene, 787 F.2d 704(1st Cir. 1986). Thus, Plaintiffs’ argument that Younger does not apply to the Rhode Island Family Court’s proceedings for abused and neglected children must fail.
i. The First Middlesex Factor The facts of this case clearly satisfy the three-prong Middlesex test. First, there are ongoing proceedings for each of the named children before the Rhode Island Family Court and injunctive relief will interfere with these proceedings. The Rhode Island Family Court plays a critically important function in child abuse and neglect cases from the outset. The Family Court is vested with the exclusive original jurisdiction to hear and determine "matters relating to delinquent, wayward, dependent, neglected, or mentally defective or mentally disordered children," as well as all matters regarding the guardianship and adoption of children in the
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Case 1:07-cv-00241-ML -LDA Document 55 Filed 02/15/08 Page 21 of 35 PageID #: 948
custody of DCYF. See R.I. Gen. Laws §14-1-5. See also In re Alicia S., 763 A.2d 643, 645 (R.I. 2000). The stated purpose for the Family Court is "[t]o secure for each child under its jurisdiction care, guidance and control, preferably in his or her own home, that serves the child's welfare and the best interests…." See R.I. Gen. Laws §14-1-2(1). Significant for purposes of this litigation is the number of duties imposed upon the Family Court with respect to abused or neglected children in the legal custody of the state.
If allegations of abuse and/or neglect are substantiated, the Department of Children, Youth and Families (hereinafter “DCYF”) is empowered to file a petition in the Family Court, in which it may ask that the child be removed from the home, remain removed from the home or remain in the home. See R.I. Gen. Laws §§ 14-1-11, 40-11-7. The Family Court is vested with the authority to either grant or deny the petition for removal.
If the Family Court orders that the child be placed in DCYF’s protective custody, the Court has explicit statutory authority to approve or direct the placement of abused or neglected children. For example, the Family Court has the authority to order the temporary placement of a child in the care of a relative within thirty (30) days of being placed in the care of DCYF. See R.I. Gen. Law §14-1-27. In addition, the Family Court may authorize the placement of such a child in private homes licensed by the DCYF, in the care of any agency or institution licensed for childcare or in the care of the parent, relative, or other suitable person upon such terms as the Court deems to be in the child’s best interests. See R.I. Gen. Laws §§ 14-1-27 and 14-1-34. Even if the child is not removed from the home of the parent, the Family Court must still approve the continued placement of that child in the home. See R.I. Gen Laws §14-1-32(1).
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In cases where the Family Court orders the removal of a child from the home of a parent, it has several mandates. The Family Court shall, upon the filing of a petition, immediately take any action it deems necessary or appropriate for the protection of the child, or children, suspected of being abused or neglected, including the removal of the child, or children, from the custody of the parent or parents, or other person suspected of the abuse or neglect. See R.I. Gen. Laws §40-11-7.1. The Family Court must also conduct a hearing within seven (7) days from the filing of any petition to remove a child. See R.I. Gen. Laws §40-11-7.1(b). During said hearing, the Family Court must also assure that a guardian ad litem or court appointed special advocate has been appointed to represent the interests of the child. See R.I. Gen. Laws §40-11-7.1(b) (3).
As part of its continuing exclusive jurisdiction, the Family Court will preside over each child’s case from a pre-adjudication stage, to trial, to Rule 17 case plan reviews, to permanency hearings, and even eventual adoption of the child in certain cases. See R.I. Gen. Laws §40-1112.1. In fact, after the Rhode Island Family Court assumes exclusive jurisdiction over the child, the Family Court may retain said jurisdiction and continue to monitor the matter until that child reaches eighteen (18) years of age. See R.I. Gen. Laws §§14-1-11 and 14-1-6.
The Plaintiffs contend that although the Family Court conducts periodic reviews, the Family Court has no authority to issue specific orders3 on behalf of abused and/or neglected
3 Plaintiffs’ contend at footnote 33 of their Opposition Memorandum that the Family Court cannot order the children to a specific placement. The exhibits produced in this case dispute Plaintiffs’ suggestion. By way of examples, see A-23 (Family Court justice orders “child to be placed with “specific name”, no unsupervised visits with child”), A-28 (A Family Court decree states “that said children shall be placed with ___ and _____ ________ as long as their home is suitable to accommodate the addition of ‘Briana’ and ‘Alexis’” and “That visitation may take place daily at the home of the _______ from 5:00 to 7:00 p.m.”), Exhibit C-7 (The Family Court justices orders that “child to be placed with Mom-as long as she lives in present home or DCYF agrees to home for Mom and child”; Exhibit C-19 (the Family Court ordered that “the maternal
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children to remedy the issues as asserted in the instant case. See Plaintiffs’ Memorandum in Objection to Motion to Dismiss, fn 33. Even with a cursory review of the Family Court Act, along with the procedural history of each Plaintiff child’s case, it is clear that Plaintiffs’ argument is patently wrong.
At each scheduled “Rule 17” hearing4, permanency hearing, dispositional hearing or even termination of parental rights hearing, the Family Court has the authority to consider and determine many aspects of each child’s case. The Family Court determines the particular placement and often sets conditions on said placement. For example, the Family Court may refuse to remove a child from the home of the parent, but order the child to remain in the parent’s home, so long as the parent’s comply with substance abuse treatment or counseling, or any other service that the Family Court deems necessary to ensure the safety of the child. The Family Court also approves visitation schedules between the child and the biological parent. The Family Court considers and approves services for the child in addition to any services that the parent must engage in order to effectuate reunification. See R.I. Gen. Laws §40-11-12.1. In addition, the Family Court has the authority to compel a parent to engage in a program of counseling, whether it be anger management, substance abuse, mental health, etc., in order to learn how to provide a safe living environment for their child. See R.I. Gen. Law 14-1-32(3).
The Family Court also has explicit statutory authority to direct and/or approve the placement of a child, notwithstanding whether that child remains placed in the home of the biological parent or is placed in foster care. Once a child is placed in the custody of DCYF, the
grandmother is allowed to visit said child on biological mother’s scheduled visiting day (biweekly Fridays)”, “[t]hat if maternal grandmother misses two consecutive visits, she will not visits again” 4 See R.I. Rules of Juv. Proc. Rule 17.
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Family Court “may at any time, for good cause shown, modify or revoke the decree,” of custody. See R.I. Gen. Laws § 14-1-34. Additionally, in any case wherein the DCYF is unable to complete the licensing process of a foster home within six months of the child’s placement in the home, the Family Court has the authority to authorize the continued placement of the child in said foster home, or the child must be removed from that home. See R.I. Gen. Law § 14-1-34(c).
In the event the department is unable to complete the licensing process within six (6) months of the child's placement in the foster home and if the department determines that continued placement of the child in said foster home is in the child's best interest, the department shall file a petition with the family court to seek authorization to allow the child(ren) to remain in the foster home pending completion of the licensing process. The department shall provide notice of all such petitions to the office of the child advocate, children(s) parent/guardian and CASA attorney… Id. It is significant to note that the Office of the Child Advocate is by law required to receive notice of any such filing and has a right to intervene in such cases. Further, the DCYF is required to petition the Family Court for authorization to place a child in an out of state child caring facility (other than in the home of a relative). See R.I. Gen. Laws §14-1-65. As a matter of law, the Family Court may authorize such a placement if the Court concludes that there are no suitable in state facilities, the child will receive an individualized education plan and that the placement is in the best interests of the child. Id. At a minimum of every six months the Family Court requires DCYF to “submit within thirty (30) days a written plan for care and treatment” of the abused or neglected child. See R.I. Rules of Juv. Proc. Rule 17; see also R.I. Gen. Laws 42-72-10. The Family Court considers the appropriateness of the DCYF’s service plan and whether the parents are complying with said services sufficiently to prove to the court that the parent(s) can safely have their child returned to
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parent(s) home. See R.I. Gen. Laws §40-11-12.2. Upon submission of the written plan for care and treatment, the Family Court “shall thereupon approve or modify such plan, or shall remand such plan to the department for further development and resubmission.” See R.I. Rules of Juv. Proc. Rule 17. The Plaintiffs attempt to analogize the Family Court’s involvement at this stage as a “review” of an executive action akin to New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1998). Given the Family Court’s authority under Rule 17 and the provisions of R.I. Gen. Laws §40-11-12.2, which include but is certainly not limited to expressly modifying the child’s care plan, there can be no comparison to NOPSI. Rather, the Family Court’s authority in this area is very similar to that of the Florida state courts as described in 31 Foster Children, 329 F.3d at 1277-1278, where abstention under Younger was deemed appropriate.
Within twelve months of the Family Court acquiring jurisdiction of a child, the court must hold a permanency hearing. At a permanency hearing the Family Court makes various determinations concerning the welfare of the child and the long-term case plan objectives. See R.I. Gen. Laws §40-11-12.1. Specifically, during the permanency hearing, the court is obligated to consider the appropriateness of the services being provided by the DCYF to both the child and the parent. The Family Court is also mandated to consider whether said services are sufficient to strengthen and perhaps reunite the family. See R.I. Gen. Laws §40-11-12.1(d)(1), et. seq. At all permanency hearings, the Family Court must consider whether it is likely that the child will be reunified with the biological parent in the reasonable foreseeable future. If reunification is not imminent and/or likely within a determinate period of time, the Family Court must consider whether or not to authorize DCYF to pursue an alternative permanency outcome for the child.
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The Family Court has the authority to order that the DCYF pursue guardianship, a potential adoptive home, or even continued long-term foster care, if appropriate. See R.I. Gen. Laws §4011-12.1(e)(1) et. seq.
On the other hand, the Family Court might also determine that the biological parent may soon be in a position to provide a safe home for their child. In that case, the Family Court may authorize the DCYF to continue to make efforts and provide services in an attempt to reunify the family unit. Specifically, the statute provides that the Family Court may, “[d]irect that foster care of the child and reunification efforts be continued if the department of children, youth, and families, after a hearing, has demonstrated to the court that continuation of the child in foster care and continued reunification efforts for a determinate period is in the child's best interests.” See R.I. Gen. Laws §40-11-12.1(e)(3).
Consistent with the primary goals of the child welfare system, when the Family Court is satisfied that a parent has successfully completed the services requested by DCYF and approved by the Family Court, the child may be reunified with the biological parent. Even after reunification occurs, the Family Court will continue to exercise jurisdiction in a case until such time as the court is satisfied that the welfare of the child is adequately protected.
In the cases wherein the Family Court concludes that a child cannot be safely returned to the home of the biological parent, the Family Court has the authority to compel that DCYF initiate a termination of parental rights petition.” See R.I. Gen. Laws §40-11-12.1(e)(5). Family Court has the authority to adjudicate the termination of parental rights petitions. See R.I. Gen. Laws §15-7-7. After trial, if the Court concludes by clear and convincing evidence that a parent has demonstrated an inability to care for a child and that the DCYF has made reasonable efforts
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to make efforts to reunify the child with a parent, the Family Court is empowered to enter an order terminating the parental rights of the parent and awarding sole guardianship to the Director of the DCYF. See R.I. Gen. Laws §15-7-7(a) - (d). Thereafter, the Family Court is required to schedule a review hearing of the case within thirty (30) days from the date of the entry of the termination of parental rights decree. See R.I. Gen. Laws §15-7-7(g). At that hearing, the DCYF is required to provide the court with a report which documents the steps the Department is taking to find an adoptive family for the child, or a fit and willing relative, or legal guardian, or other planned living arrangement and/or to finalize the adoption or guardianship of the child. Id. Thereafter, in cases wherein the DCYF service plan goal is designated as “adoption”, the DCYF is required to present to the Family Court a plan which outlines the steps the Department is taking to find an adoptive family and/or the efforts is Department is making to finalize the service plan goal of adoption on behalf of the child. See R.I. Gen. Laws §40-11-12.2(h). Ultimately, if an adoption petition is filed, the Family Court is vested with jurisdiction to approve and enter an order that finalizes the adoption. See R.I. Gen. Laws §§ 14-1-14 and 15-74.
Notwithstanding the expansive authority vested in the Rhode Island Family Court the plaintiffs’ contend that the Family Court’s involvement is not “ongoing”. See Plaintiffs’ Memorandum in Opposition to Motion to Dismiss at page 35. Such a statement is at best unsupported by any facts. Rather, a more deliberative examination of the Family Court files reveal that in most cases, as a matter of course, the Family Court examines and takes action in the best interest of the children on far more frequent basis. By way of illustration, in the case of Deanna H. the DCYF filed a neglect and abuse petitions in October of 2006 and its first
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termination of parental rights petition in January of 2007. See Exhibits A157, A173. The State has presented certified copies of Family Court records which reflect that between October of 2006 and October of 2007 the Family Court conducted both pre and post adjudicatory hearings on Deanna’s case. The record reveals that Deanna’s case was heard before the Family Court on thirteen (13) occasions. See Exhibits A 158 – A 177.
It is clear from this brief summary that the Family Court plays an active and important role in the cases of abused and neglected children. The Family Court is vested with explicit and exclusive statutory authority to ensure that the children’s best interests are protected in the course of child protection proceedings. Clearly, any injunctive relief that this Court would issue in this case would directly and indirectly interfere with the Family Court’s decisions, including but not limited to the issues of placement, treatment and services.
The active role of the Rhode Island Family Court in cases of abused and neglected children is similar to Florida, as described by the Eleventh Circuit in 31 Foster Children. In determining whether the first factor of the Middlesex test had been satisfied in Florida, the Eleventh Circuit explained:
Whether the effect of the federal court injunctive relief the plaintiffs seek in this lawsuit will interfere with ongoing state dependency proceedings depends in part upon the nature and extent of those proceedings. The state trial level courts of Florida play a critically important role in dependency hearings from the outset of a child's case. After the Department files a petition for dependency, the court holds an adjudicatory hearing as soon as practicable. Fla. Stat. § 39.507. If the facts alleged in the dependency petition are proven in the adjudicatory hearing and the child is determined to be dependent, the state court conducts a disposition hearing. Id. §§ 39.507(7); 39.521(1). The Department must prepare a written case plan and a predisposition study and file these items with the court no later than 72 hours before the disposition hearing. Id. § 39.521(1)(a). The case plan is a document that “ follows the child from the provision of voluntary services through any dependency, foster care, or termination of parental
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rights proceeding or related activity or process.” Id. § 39.01(11). It must include, among other items, a description of the permanency goal for the child, a description of the type of home or institution in which the child is to be placed, a discussion of the safety and appropriateness of the child's placement, the services that the child needs and will receive, a description of the visitation rights of the parents, and a description of the efforts to be undertaken to maintain the stability of the child's education. Id. § 39.601(3)(a)-(i).
The case plan must be approved by the court. Id. §§ 39.601(2), (3); 39.603. It may be amended if all the parties agree and the court approves, or after a hearing it may be amended by the court on its own motion or that of a party, based on competent evidence that demonstrates the need for an amendment. Id. § 39.601(9)(f). If at the hearing on the case plan, which occurs in conjunction with the disposition hearing, the court determines that any of the elements required in the plan are not present, it can order the Department to amend the plan to include what is necessary. Id. § 39.603(2).
The state court has continuing jurisdiction over a dependency case and reviews the child's status at least every six months. Id. § 39.701(1)(a). Prior to the review hearing, the Department must furnish to the court a written report that includes, among other items, a description of the placement of the child, its appropriateness, the safety of the child, the number of placements, documentation of the efforts of all parties to comply with the case plan, the number of times the child's educational placement has been changed, and copies of all medical and psychological records that support the terms of the case plan. Id. § 39.701(6)(a). At the review hearing, the court considers the child's situation, including whether there has been compliance with the case plan, the appropriateness of the child's current placement, and whether the child is in a setting that is family-like and consistent with the child's best interests and special needs. Id. § 39.701(7)(d), (g). No later than 12 months after the date that the child is placed in shelter care, the court must conduct a judicial review to plan for the child's permanent placement. Id. § 39.701(8)(f). If the child is not returned to his parents, the case plan must document steps the Department is taking to find an adoptive parent or other permanent living arrangement for the child. Id.
If the Department has not complied with the case plan, the court may find it in contempt. Id. § 39.701(8)(c). The court can also issue protective orders. Id. § 39.701(8)(g). A protective order can require a person or agency to make periodic reports to the court containing such information as the court prescribes. Id. The court can issue a protective order in support of, or as a condition to, any other order it may make. Id.
329 F.3d at 1277-1278. After reviewing the Florida court’s extensive involvement and control
over the state’s abused and neglected children, the Eleventh Circuit addressed whether a Federal
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Court’s order of injunctive relief would directly or indirectly interfere with the ongoing state
proceedings. The Eleventh Circuit resolved this question in the affirmative, finding that:
In this case, the plaintiffs are seeking relief that would interfere with the ongoing state dependency proceedings by placing decisions that are now in the hands of the state courts under the direction of the federal district court. The declaratory judgment and injunction that they request would interfere with the state proceedings in numerous ways. The federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff, such as whether a particular placement is safe or appropriate or whether sufficient efforts are being made to find an adoptive family. The federal court relief might effectively require an amendment to a child's case plan that the state court would not have approved, and state law gives its courts the responsibility for deciding upon such an amendment. See Fla. Stat. § 39.601(9)(f). Even though any remedial order would run against the Department, state law makes it a duty of state courts to decide whether to approve a case plan, and to monitor the plan to ensure it is followed. Id. § 39.701(1), (7)-(8). The plaintiffs seek to have the district court appoint a panel and give it authority to implement a systemwide plan to revamp and reform dependency proceedings in Florida, as well as the appointment of a permanent children's advocate to oversee that plan. To say the least, taking the responsibility for a state's child dependency proceedings away from state courts and putting it under federal court control constitutes “ federal court oversight of state court operations, even if not framed as direct review of state court judgments” that is problematic, calling for Younger abstention. Joseph A., 275 F.3d at 1271. The relief that the plaintiffs seek would interfere extensively with the ongoing state proceedings for each plaintiff. The first Middlesex factor is satisfied.
329 F.3d at 1278-1279. Given the similarities in the state courts’ direct involvement with abused
or neglected children, the Eleventh Circuit’s analysis supports dismissal of this Amended
Complaint.
Plaintiffs attempted to distinguish the 31 Foster Children decision by claiming that it was
never certified as a class action. See Plaintiffs’ Memorandum of Law in Objection to Motion to
Dismiss at pages 32-33. Plaintiffs ignore the fact that this case has not been certified as a class
action. See Defendants’ Reply Memorandum at pages 52-54. Plaintiffs attempted to further
distinguish 31 Foster Children by claiming that in Florida the plaintiffs specifically asked the
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federal court, as part of their prayer for injunctive relief, to appoint a panel and give it authority to revamp and reform that state’s foster care system. See Plaintiffs’ Memorandum of Law in Objection to Motion to Dismiss at pages 32. Learning from this error, the Rhode Island Plaintiffs ask this Court for abstract injunctive relief in an effort to avoid Younger abstention. The Defendants addressed at length why this legal tactic should not defeat Younger abstention in the present case. See Defendants’ Memorandum of Law in Support of their Motion to Dismiss at pages 62-68.
Injunctive relief in this case would clearly interfere with each of the named children’s cases before the Rhode Island Family Court. The practical effect of any injunctive relief would require this Court to review, approve and/or overrule the Family Court’s orders of placement, treatment and services for Sam and Tony, Danny and Michael, Deanna, Daniel T. and Caesar. The first Middlesex factor has been satisfied. See Defendants’ Memorandum of Law in Support of their Motion to Dismiss at pages 60-68. See also, Defendants’ Reply Memorandum at pages 42-49.
ii. The Second Middlesex Factor Rhode Island’s child welfare system and its oversight by the Family Court are important state interests. Although Plaintiffs attempt to dispute this fact, their position is clearly contradicted by this district, the First Circuit and other federal courts. See Defendants’ Reply Memorandum in Support of their Motion to Dismiss at pages 57-58. See Moore v. Sims, 442 U.S. 415, 434, 99 S.Ct. 2371, 2382, 60 L.Ed2d 994 (1979); Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178, 193 (D.R.I. 2004); McLeod v. State of Maine Department of Human Services, 1999 WL 33117123 (D.Me. 1999), affirmed McLeod v. Maine Department of Human
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Services, 229 F.3d 1133, 2000 WL 869512 (1st Cir. 2000); Foreman v. Heinman, 240 F.R.D. 456, 524(D.Neb. 2007); Kenny A. v. Perdue, 218 F.R.D. 277, 285 (N.D.Ga. 2003). The second Middlesex factor has been satisfied.
ii. The Third Middlesex Factor The third Middlesex factor requires that the state court proceedings provide these federal plaintiffs the opportunity to raise their alleged federal claims. The Defendants extensively briefed this issue in their Memorandum of Law in Support of their Motion to Dismiss at pages 68-72 and their Reply Memorandum at pages 58-63. The Family Court, with appellate review by the Rhode Island Supreme Court, has clearly addressed constitutional issues. The fact that the Child Advocate has chosen not to raise the constitutional claims asserted on behalf of the named children in this lawsuit before the Family Court has no bearing on the Middlesex analysis. In fact, the issue is “not whether plaintiffs’ claims were raised in the pending state proceedings, but whether they could have been raised.” Foreman v. Heineman, 240 F.R.D. 456, 530 (D.Neb. 2007). It is the plaintiffs’ burden to prove to this Court that their individual claims could not be adequately raised before the Rhode Island Family Court. Id. Plaintiffs cannot sustain this burden. The third prong of the Middlesex factor has been satisfied. The three factors of the Middlesex test have been satisfied in this case. Abstention under Younger is appropriate. This Amended Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
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D. This Court Should Abstain Under The Rooker-Feldman Doctrine and Dismiss the Amended Complaint for lack of Subject Matter Jurisdiction Under Fed. R. C.P. 12(b)(1).
Rooker-Feldman doctrine applies in the “’limited circumstances’ where ‘the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.”’ Federaciòn de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico , 410 F.3d 17, 23-24 (1st Cir. 2005). Plaintiffs claim that this doctrine does not apply to the named children. The Defendants disagree.
Plaintiffs’ continuously allege in the Amended Complaint that the constitutional rights of the named children were violated as a result of their placements (either with a particular foster home, residential facility or reunified with their parents) and their lack of services or visitation and, as a result, were harmed. The exhibits produced by Defendants in support of dismissal demonstrate that the Family Court either directed or reviewed and approved placements, services and visitation. Accordingly, Rooker-Feldman compels dismissal of this case. See Defendants’ Memorandum of Law in Support of Their Motion to Dismiss at pages 74-82. See also Defendants’ Reply Memorandum at pages 63-65.
E. Conclusion This Court lacks subject matter jurisdiction and the Amended Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). For the foregoing reasons as well as those set forth in Defendants’ Motion to Dismiss and supporting Memorandum of Law and Reply Memorandum, the Defendants pray that this Court grant their motion and dismiss Plaintiffs’ Amended Complaint with prejudice.
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Respectfully submitted DEFENDANTS By their Attorney,
PATRICK C. LYNCH ATTORNEY GENERAL
/s/ James R. Lee JAMES R. LEE (4305) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
/s/ Brenda D. Baum BRENDA D. BAUM (5184) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
On Behalf of PATRICIA MARTINEZ, in her Official Capacity as Director of the Department of Children, Youth and Families
/s/ Kevin Aucoin KEVIN AUCOIN (3019) Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903 Tel: (401) 528-3579 Fax: (401) 525-3566 Kevin.Aucoin@dcyf.ri.gov
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CERTIFICATION I hereby certify that I have electronically mailed the foregoing document on this 15th day of February 2008 to the attorney(s) of record listed below: John William Dineen, Esq. jwdineen1@yahoo.com Jametta O. Alston, Esq. jalston@gw.doa.state.ri.us Susan Lambiase slambiase@childrensrights.org Vernon Winters vern.winters@weil.com Marcia Robinson Lowry mlowry@childrensrights.org
/s/ Brenda D. Baum
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 Case 1:07-cv-00241-ML -LDA Document 63 Filed 04/29/09 Page 1 of 31 PageID #: 1389

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

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.

C.A. No. 07-241L

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.

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

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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
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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
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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
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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 .. . j" 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 classj a permanent injunction against further actions that violate the rights of the classj remedial relief to ensure
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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
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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 the Court-Appointed Special Advocate program, known as "CASA." On June 26, 2007, the Family Court approved DCYF's goal of reuniting Deanna with her parents, but found her return home at that time was not safe. The Family Court determined further that DCYF had made reasonable efforts towards reuniting Deanna with her mother. Later that summer, the Family Court made a finding of neglect as to Deanna's mother, rescheduling the hearing on their reunification until October 2007. Neither Deanna's mother
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or father have had their parental rights terminated. During the course of these proceedings, it does not appear that either the present Next Friends or the Child Advocate have made any attempt to intervene in Deanna's case to aid the Family Court in arriving at a reasonable solution to her plight.
Caesar S. Caesar was born in 2001 to a 15-year-old mother, Rhonda, who herself had been in DCYF custody, as had her mother, Caesar's grandmother, when she was a little girl. Rhonda's mother's house had been the target of 61 DCYF investigations since 1981. Caesar's father had a long criminal history at the time of Caesar's birth, including cocaine possession and possession of a stolen car. In 2002, Rhonda and Caesar left her mother's house and moved to a rooming house with Caesar's father and her two sisters, both of whom had histories of drug abuse. After it was reported that she frequently left Caesar unattended in the rooming house, DCYF filed an emergency motion to take him into protective custody, which was granted by the Family Court. Caesar stayed in an emergency shelter for two days, and then was placed in a foster home for one month. In January 2003, Caesar was placed with his Aunt Laura, where he stayed for a year and a half. Because of reports that she was using drugs, and her own complaints that she could not
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care for Caesar, he was moved to the home of his great-aunt in September 2004. Nine days later, after receiving a report that the great-aunt was selling marijuana, Caesar was placed in another foster home for one month.
Throughout this time, DCYF continued to pursue the goal of reuniting Caesar with his mother. In May 2004, at a permanency hearing, the Family Court judge approved DCYF's case plan, including its goal of reunification, and determined that DCYF's efforts towards that goal had been reasonable.
In October 2004, Caesar was moved back with Aunt Laura, although he complained to his DCYF caseworker that she and her children punched and hit him. In September 2005, after a doctor determined that Caesar had been beaten with a belt with excessive force, he was removed to his paternal grandmother's house. This household had been previously rejected by DCYF as an unsuitable placement, due to the criminal records of its other inhabitants. Caesar complained of being beaten here.
In January 2005, DCYF filed its first petition to terminate his parents' rights. Between March 2005 and September 2005, the Family Court held thirteen days of hearings on the petition. In September 2005, the petition was dismissed without prejudice, and Caesar's parents waived their right to have DCYF continue to work towards their reunification with Caesar. In November 2005, DCYF changed its goal to adoption for Caesar. In August 2006, a new
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petition to terminate parental rights was filed by DCYF. During the next several months, the Family Court held six hearings on Caesar's case, ultimately granting the petition in June 2007. DCYF is working with an adoption agency to find an "appropriate adoptive resource" for Caesar. The Family Court reviewed his status in August 2007. During these Family Court proceedings, Caesar has been represented by various guardian ad litems, most frequently by Attorney Joseph Palmieri. A couple of times Caesar was represented by Attorney Ellen Balasco of CASA, and more recently he has been represented by Attorney Charles Greenwood. In several of the Court's documents, it is noted that no guardian was present to represent Caesar. As of the time these documents were submitted to this Court, another Family Court review was scheduled for November 2007. Again, nothing in the record reflects that the Next Friends or the Child Advocate have attempted to intervene in this case at any time.
David T. Born in 1993, David has been in DCYF custody since he was two years old when he was removed from his mother's care because of evidence of sexual and physical abuse. His mother already had six children who had been removed from her custody in Massachusetts and Michigan. Moreover, the Michigan Probate Court - Juvenile Division had previously issued an order to take David into custody. In 1996, in Rhode Island, David was placed with a
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foster mother, Mary Melvin, for approximately two years. During this time, the Family Court granted DCYF's motion to suspend visits between David and his mother. In November 1997, DCYF filed a petition to terminate the parental rights of both David's mother and father. This motion was granted by the Family Court and, in April 1998, DCYF became David's legal guardian.
Although David and foster mother Mary Melvin had become attached, this foster placement ended because Melvin retired from foster parenting. During the next three months, David was moved from shelter to shelter. In February 1999, the Family Court approved a placement through an Interstate Compact, and he was sent to live with an aunt in Massachusetts. Unfortunately, she ran into problems with housing, or could not handle David, and he was returned to Rhode Island to again live in a shelter.
At this point, David's behavior began to deteriorate significantly. His school asked that DCYF provide him with special services, but none were provided. Some days, DCYF did not provide David with transportation to school and he ended up spending the day in the shelter. Eventually, DCYF received Family Court approval to transfer David to an institutional facility. Then, at age six, he was hospitalized at a psychiatric facility for five months.
From 2001 through 2003, David was housed at St. Vincent's Home, a residential treatment facility. There he was sexually
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abused by his roommate. In October 2002, the Family Court determined that DCYF had made reasonable efforts to finalize the permanency goals of adoption, guardianship or "another planned alternative living arrangement." In 2003, he was moved to a Massachusetts facility where he had one-on-one supervision. During that year, he was restrained by facility staff 105 times. Between 2001 and 2005, David met with five different DCYF caseworkers a total of twelve times. In 2004 and 2005, he had only one caseworker visit per year.
In 2004, David met with adoption recruitment staff for the first time, despite the fact that he had been registered for adoption eight years before. However, he was deemed to be "too damaged for placement." In November of 2004, the Family Court approved DCYF's case plan, which recommended against adoption, but determined that DCYF had not made "reasonable efforts to finalize the permanency goal of another planned alternative living arrangement." This permanency plan was approved again in November 2005 by the Family Court, which, on this occasion, found that DCYF had made reasonable efforts to finalize David's living arrangements.
In January 2006, the Family court ordered an immediate independent assessment of David and ordered his CASA advocate to investigate placing David at a facility called Center Point. David has been represented in the Family Court by CASA advocate
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Attorney Francis J. Pickett since 1996. In March of 2006, at age 12, David was moved to the Merrimack Center, an out-of-state residential facility, where he rooms with an 18-year-old. Since that time, he has reportedly engaged in sexual self-mutilation, and gained fifty pounds. He is now considered to be suffering from bipolar disorder and mild mental retardation. He has an older brother who has expressed interest in caring for him, but DCYF has not pursued this option.
On November 27, 2006, the Family Court again approved David's placement at the Merrimack Center. Because the Merrimack Center has no educational component, the Family Court ordered DCYF to continue to investigate other placements. In June 2007, David was moved to another facility. Another review in Family Court was scheduled for November 2007. The Child Advocate and the Next Friends have played no role in the Family Court proceedings on behalf of David.
Sam and Tony M. In May 1999, Sam, four, and his infant brother Tony were taken into DCYF protective custody after their mother attempted suicide. Their mother had previously been reported to DCYF for neglecting the children during the previous winter, but the children were left in the home. At this time they were placed with a family friend, who burned one of the boys with cigarettes. In June 1999, Sam told his DCYF caseworker that his father had
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abused him sexually. It was recommended that Sam be evaluated, but, before this could take place, his father rescinded his consent to the evaluation in October 1999.
In January of 2000, the boys were returned to their parents. The following month, DCYF received a report that the boys were covered with bruises and that their father was drinking and had beaten their mother in their presence. It was also reported that the father had threatened to kill Sam and his mother. Nonetheless, DCYF continued to monitor the home and the children remained there. Around this time, the father left the home and the mother remarried. In June 2000, the Family Court suspended visits between the boys and their father.
In December 2000, the Family Court judge determined that the mother was doing well. Regular Family Court reviews ensued, and in November 2001, Family Court closed its file and awarded sole custody of the children to their mother.
In July 2002, DCYF received a report that the boys' stepfather had brutally beaten Tony and sexually abused him, while on home confinement on a charge of beating Tony's mother. Initially, the boys remained at home, with a Family Court order preventing the stepfather from being in the boys' presence. Plaintiffs report that the boys were moved to their grandparents' home. In January 2003, DCYF investigated a report that their grandfather hit one of the boys with his cane. However, it
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appears from court records that the boys' Family Court case was again closed in January 2003.
However, in February 2003, Sam and his mother were in a car accident, due to her drunk driving. The boys were again taken into protective custody and placed in foster care. After one of the boys started to act out in a sexual manner, the foster parents requested that he be evaluated. The evaluation was not scheduled for six months, during which time the boys were moved to another foster home. Also during this time, Tony threatened his mother with a knife and spent some time at Butler Hospital.
In October 2003, the boys were returned to their mother's care. This situation lasted until May 2004, when the boys were removed from the mother because of her substance abuse and domestic violence. They were placed in a group facility. That month, the Family Court determined that DCYF's goal of reunification for the family was still appropriate, but that it was not yet safe to return the boys to their mother.
In February 2005, the Family Court ordered DCYF to file a petition to terminate the parents' rights and, simultaneously, to provide services to the mother that could help achieve the continued goal of reunification. In addition, the Family Court ordered that a therapist determine whether visits between the mother and the children should take place. The petition to terminate parental rights was filed in October 2005. In November
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2005, the boys were moved to a residential treatment facility. The following month, the boys, by now aged seven and ten, were moved to separate out-of-state psychiatric hospitals. In February 2006, their father's parental rights were terminated.
In July 2006, the Family Court withdrew the petition to involuntarily terminate parental rights as to the mother, when she agreed to consent to DCYF's revised goal of adoption or guardianship for the boys. The Family Court determined further that DCYF had made reasonable efforts to finalize adoption or guardianship. At that time, the boys began to have overnight visits with their maternal grandparents.
In October 2006, the hospital's staff noted that Tony's roommates tried to involve him in sexual activity; however, he was not subsequently separated from these roommates. In January 2007, it was noted in Tony's file that he was molested by his roommate. Again, because of over-crowding at the facility, Tony's room assignment was not changed. The same month, the Family Court found that DCYF was making appropriate efforts to find an adoptive home or guardianship for the boys, including possibly with the grandparents. As of this writing, Sam and Tony remain institutionalized and separated. Their mother's parental rights have not been terminated. Both brothers have been represented in Family Court by CASA attorney Jennifer Gates. More recently, Family Court documents indicate that they have been represented
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by Attorney Jennifer Kelly.1 The next Family Court permanency hearing was scheduled for January 2008. Neither the Child Advocate or the Next Friends have been involved in these Family Court proceedings.
Danny and Michael B. In April 2004, when the boys were just toddlers aged two and three, they were found wandering outside on their own at 6:00 a.m. This was the second report of neglect that DCYF had received within a few-month period. At this time, DCYF left the boys at home, and instructed their mother to get substance abuse counseling. In January 2005, the boys were again found outside unsupervised. The following month, DCYF visited the home and found the mother drunk, feces on the bedroom floor, and no beds. In March 2005, the boys were again found wandering in the streets. In April 2005, the Family Court ordered that the boys be taken into protective custody. They were removed from their mother and placed with their maternal great-grandmother, although no safety or background check had been conducted of her home. Because of their great-grandmother's ill health, the boys were soon moved to separate foster homes. As of July 2005, Danny was with a foster mother who had a DCYF history of abuse complaints.
1 The Court recognizes that this may be the same person, but has no way to determine this.
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Danny was later sexually assaulted in this foster home. Michael was back with great-grandmother, who by this time had received a foster care license. However, she complained that she had no medical card to enable her to seek treatment for Michael, who, along with his brother, was suffering from untreated mental health problems. In the meantime, the boys' mother was not cooperating with her drug treatment program; she was arrested twice and became homeless in August 2005.
In September 2005, the Family Court conducted a trial on DCYF's neglect petition. Because their father failed to show up at the trial and their mother admitted that she had neglected them, DCYF took legal custody of the boys.
In December 2005, the Family Court directed DCYF to file a petition to terminate the mother's rights unless they were able to make progress towards reunification by March. In March 2006, the Family Court conducted a permanency hearing and found that the goal of reunification remained appropriate and that DCYF had made reasonable efforts towards that goal. In June, DCYF filed the petition to terminate the parents' rights, citing both parents' chronic substance abuse problems.
In July 2006, Danny, now age five, was sexually assaulted by his foster mother's fifteen-year old grandson. Danny was moved to another temporary foster home, then moved to his greatgrandmother's with Michael. A month later, Danny was removed
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from his great-grandmother's because he and his brother were "exhibiting sexualized behaviors." Danny was sent to a group home in Newport or Middletown. During the fall of 2006, the Family Court conducted a multi-day trial on the termination of parental rights petition, which was granted in November, after the parents failed to appear throughout. In March 2007, at a permanency hearing, the Family Court approved DCYF's plan of adoption and found that DCYF had been making reasonable efforts towards finding an adoptive home for both boys. The Family Court again reviewed the boys' status on September 12, 2007. Both boys are represented by Attorney Laurel Ferrelli in Family Court.
Currently, Danny remains at the group home, where he is being treated for acute mental health problems. Michael remains with his great-grandmother, although she cannot care for him permanently because of her age and ill health. Another permanency hearing was scheduled for March 2008.
As with the other Named Plaintiffs, the Child Advocate or the Next Friends have made no attempt to intervene in the Family Court proceedings on behalf of Danny or Michael. The Child Advocate's pattern of conduct of boycotting the Family Court in order to pursue another agenda can only be viewed as an abdication of her statutory responsibilities.
Next Friends
Rounding out the cast of characters participating in this
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lawsuit are the proposed Next Friends. Pursuant to Rule 17(c) of the Federal Rules of Civil Procedure, a minor may only sue or defend a lawsuit when represented by a next friend or guardian ad litem. In this case, three adults seek to serve as Next Friends for the named Plaintiffs. Pursuant to Rule 17(c) (2), they must be appointed by this Court. In order to evaluate the Next Friends's suitability for this sensitive task, the Court held hearings on January 22 and 23, 2008. All three Next Friends appeared and testified as to their relationships with the named Plaintiffs and their motivation in volunteering to represent them in this lawsuit.
i) Mary Melvin
Mary Melvin, who was a foster mother for David T. from 1996 to 1998, seeks to serve as his Next Friend. Melvin served as a foster parent for twenty years, caring for at least 25 children. She was named Rhode Island Foster Mother of the Year in 1992 and 1997. She worked for many years at a nursing home for elderly and handicapped people in Providence, and currently works as a Senior Companion for the Cranston, Rhode Island, Department of Elderly Affairs. Melvin stopped working as a foster mother because of an illness in her own family.
She testified that she thought that, when David left her home, he was to be adopted by a family member. However, that fell through, and he ended up in a shelter. After David moved
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from her house in 1998, Melvin continued to see him and visit with him from time to time during that year. She recalls taking him to church, doctors' appointments and counseling sessions. Eventually, they fell out of touch because he was moved around and she was unable to get information about his whereabouts from DCYF.
During cross examination by Rhode Island's assistant attorney general, Melvin revealed that she has not seen David for ten years. Moreover, she does not know where he has been since 1998 or where he is now. She is unaware of what, if any, services or education have been provided for David since 1998. She was also unaware that David is represented in Family Court by a CASA advocate. Melvin explained that she had never had any contact with the CASA advocate when David was in her care.
ii) Kathleen J. Collins Kathleen J. Collins seeks to appear as Next Friend for Caesar S. Collins has a master's degree in school psychology from the University of Rhode Island, and has worked as a school psychologist for the Providence School Department for seventeen years. She is currently the school psychologist for two Providence elementary schools. During the school year 2006-2007, Collins was the psychologist for Caesar's kindergarten class, where she met with him three or four times a week. She has not seen him since June
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2007, because he moved over the summer and did not return to her school. She attempted to find out where he was but was unable to get information about him.
On cross examination, Collins stated that she has had no interaction with Family Court and does not know the guardian ad litem who represents Caesar there. Although she has spoken with a DCYF staff person, she has not seen Caesar's DCYF or Family Court records and is unaware of his current situation.
iii) Gregory C. Elliott The remaining eight children (of whom three are no longer in DCYF custody, having been adopted) would be represented by Gregory Elliott, associate professor of sociology at Brown University. Elliott has taught at Brown for 24 years. He is a social psychologist, and has studied the issue of child maltreatment. He is currently writing a book on adolescents. Elliott testified that he has never met any of the children, but he agreed to represent them because of what he knows about the state's child welfare system and its shortcomings, and Uthe dire circumstances" in which it places children. Elliott has reviewed the allegations in the Amended Complaint, but he has not seen the children's medical records, educational records or DCYF records.
Capacity or standing of these Next Friends This Court has many concerns about the capacity of the Next
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Friends to sue on behalf the Named Plaintiffs. One area of
concern results from the minimal, to non-existent, relationships
that exist between the proposed Next Friends and the children
they seek to represent. The Court is also reluctant to appoint these Next Friends because the Named Plaintiffs are all involved
in active, ongoing proceedings in the Rhode Island Family Court.
Moreover, the Family Court has already appointed representatives
for the Named Plaintiffs, which representatives are currently
serving as Special Advocates or guardians ad litem in those
proceedings.
"Duly appointed representative"
The Federal Rules of civil Procedure Rule 17(c), as noted above, provides for the representation of a minor or incompetent
person as follows:
(1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; (D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem - or issue another appropriate order - to protect a minor or incompetent person who is unrepresented in an action.
It cannot be said that our seven Named Plaintiffs do not
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have "a duly appointed representative," because just such a representative has been designated by the Family Court - the guardian ad litem or CASA advocate. The advocates for these seven children have been appointed by the Family Court and are independent of Defendants. They are attorneys and members of the Rhode Island Bar. Furthermore, they have, for the most part, consistently attended the proceedings in Family Court on behalf of their clients. The Family Court records indicate that from time to time substitute attorneys enter appearances on behalf of the children, and from time to time, no attorney is present or, at least, their presence is not noted on the forms that memorialize the proceedings.
This Court's reservations about the appointment of these particular Next Friends are corroborated by the Seventh Circuit appellate court in T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997). In that case, Enk, a children's rights advocate, sued various officials from Milwaukee's social service agency, alleging that the agency had conspired, for racist reasons, to transfer two black children from their white foster home to the home of their black aunt. A lawyer, who followed the custody battle between the foster parents and the aunt, asked Enk to serve as Next Friend in the $120 million lawsuit, which named as defendants both the children's aunt, who had been designated as their custodian, and the guardian ad litem who had represented
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their interests in the custody proceedings. After the district
court held that Enk was not a proper next friend and dismissed
the suit with prejudice, Chief Judge Posner of the appellate
court held that,
As a general rule, a federal court cannot appoint a guardian ad litem in an action in which the infant or incompetent already is represented by someone who is considered appropriate under the law of the forum state. It is a sensible general rule because the management of the affairs of infants, like other matters relating to domestic relations, is the primary responsibility of the states rather than of the federal government.
124 F.3d at 896 (internal quotations and citations omitted) .
Judge Posner went on to discuss the issue of standing.
The question who shall represent the children because of their incapacity to sue on their own is not a separate issue of standing. Even allowing a complete stranger to bring suit in their name as their next friend because they cannot sue on their own behalf would not violate Article III. But it might well offend the policy behind the requirement of standing, which is to confine the right to initiate and control federal court litigation to persons who have a concrete stake, rather than merely an ideological interest passionate and motivating as such interests can be - in the litigation.
124 F.3d at 897.
Judge Posner continues, voicing his suspicion that Enk is
using the children as "pawns" to make "an end run" around the
state's family court in order to get to federal court. 124 F.3d
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at 897. He suggests that this could be avoided if the children's general representative sought appointment from the family court to represent the children in the federal lawsuit: "If the state court has the power under state law to appoint a guardian ad litem in a federal suit but decides not to do so because it is satisfied that the children are being adequately represented by their aunt or by the existing guardian ad litem, that judgment would bind the federal district court as a matter of res judicata." 124 F.3d at 897.
In a similar vein, in Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989), the Tenth Circuit held that an injured child's mother could not serve as next friend to the child in a fee dispute that followed litigation in which the child had been represented by a court-appointed guardian ad litem. The Court cited the language of Rule 17(c) which states that a lawsuit may be brought on behalf of a minor by a representative, "or other like fiduciary," or may be brought by a next friend for a child "who does not have a duly appointed representative ... ," and stated,
The narrow question before this court is whether a guardian ad litem appointed pursuant to Rule 17(c) is an "other like fiduciary" that would bar Garrick from proceeding as next friend for her children on the matter for which the guardian ad litem was appointed. We hold that a courtappointed guardian ad litem is such a fiduciary, and that Garrick has no standing to raise claims on appeal on behalf of her children.
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888 F.2d at 693. The Court went on to suggest that Garrick apply to the district court to have the guardian ad litem removed, prior to pursuing the fee dispute. Id. at 693.
In M.K. v. Harter, 716 F. Supp. 1333 (E.D. Cal. 1989), the Court reached the similar conclusion - that the federal court could not appoint a representative under Rule 17(c) in a civil rights lawsuit involving the state's child welfare system because the child was already represented by a guardian ad litem in state juvenile proceedings. 716 F. Supp. at 1335. See also Developmental Disabilities Advocacy Center v. Melton, 689 F.2d 281 (1st Cir. 1982).
Whitmore v. Arkansas Ultimate authority for this Court's position on the Next Friends comes from the Supreme Court's decision in whitmore v. Arkansas, 495 U.S. 149 (1990). In that case, death row inmate Simmons had previously waived his right to appeal his conviction and sentence. The Arkansas Supreme Court reviewed and affirmed the trial court's ruling that Simmons was competent to make the waiver. Whitmore, another death row inmate, sought to intervene in the competency determination both individually and, alternatively, as Simmons' next friend. The U.S. Supreme Court rejected Whitmore's bid to serve as next friend for Simmons. 495 U.S. at 166. The Court reviewed its criteria for Next Friend standing: 1) inaccessibility or incompetence of the real party in
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interest; 2) the Next Friend must be fully dedicated to the best interests of the real party in interest; and 3) the Next Friend must have "some significant relationship with the real party in interest." 495 U.S. at 164. The Court stated that, "The burden is on the 'next friend' clearly to establish the propriety of his status and thereby justify the jurisdiction of the court." 495 U.S. at 164.
In the present case, as in Whitmore, the proposed Next Friends have not fulfilled their burden of convincing this Court of the "propriety" of their status, particularly as to the third prong articulated by the Supreme Court: a significant relationship with the person they seek to represent. Mary Melvin seeks to represent David T. as next friend although she has not seen him or been aware of his status or circumstances for over eleven years, since he was around six years old. Likewise, Kathleen Collins seeks to serve as Next Friend for Caesar S. She was his school psychologist for a year, and has not seen him at all for almost two years. She also testified that she knew nothing of his current status or circumstances. Gregory Elliott, who seeks to serve as Next Friend for the remaining five children, has never met any of them. He has not reviewed files from Family Court or DCYF; nor has he reviewed medical or school files for any of the children. His only knowledge of the circumstances of the children has been through his reading of the
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Complaint, and his general professional knowledge of children like these children.
The Court recognizes the significant burden that participating in a federal lawsuit would impose on these very young children, including the likely possibility that they would have to testify in open court about how they have been abused by their own family members. Given the rigors of a federal trial, the Court is extremely hesitant to determine that the proposed Next Friends are sufficiently close and connected to the children to make the decision to prosecute the lawsuit on their behalf.
Rhode Island law In addition to these concerns, the Court also notes that all the Named Plaintiffs are already represented by attorneys from the Court-Appointed Special Advocates program, who have been duly appointed by the Rhode Island Family Court. Their representation of the children is continuing, as all the children are subject to the ongoing jurisdiction of the Family Court. The Rhode Island Supreme Court has asserted that matters of parental fitness and child custody are the proper jurisdiction of the Family Court.
Only Family Court has the statutory power to make such findings of parental unfitness. Moreover, the Family Court possesses the particularized expertise and resources that make it well suited for this task.
Carr v. Prader, 725 A.2d 291, 294 (R.I. 1999). The Rhode Island Supreme Court clarified the role of the CASA attorney in In re
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Christina D., 525 A.2d 1306 (R.I. 1987), when it held that the CASA attorney appointed to represent a child in a custody hearing continued to represent the child even after the parents' rights were terminated, up to the time that the child is adopted. 525 A.2d at 1308. The Court wrote, "It is inconceivable that the guardian ad litem, appointed to represent the child's interests, would be denied the opportunity to convey those interests to the trial justice in a proceeding in which the ultimate focus is the best interests of the child." 525 A.2d at 1308.
This Court concludes that the CASA attorneys appointed by the Family Court to represent the seven Named Plaintiffs constitute "duly appointed representative[s] ," as that phrase is used in Rule 17 of the Federal Rules of Civil Procedure. Consequently, this Court will not invade the jurisdiction of the Rhode Island Family Court and appoint Next Friends for children who are already represented by counsel. That this course of action falls clearly within this Court's powers has been established by the First Circuit in Developmental Disabilities Advocacy Center v. Melton, where the Court stated, "The decision as to whether or not to appoint such a special representative rests with the sound discretion of the district court and will not be disturbed unless there has been an abuse of its authority." 689 F.2d 281, 285 (1st Cir. 1982).
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Conclusion The long and short of it is that the Child Advocate and the Next Friends have no power, authority, or standing to represent the minor Plaintiffs and thus the motion to dismiss Plaintiffs' Complaint must be granted. The Clerk shall enter judgment forthwith for all defendants. It is so ordered.
Ronald R. Lagueux Senior United States District Judge April ~ ~ , 2009
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 Case 1:07-cv-00241-ML -LDA Document 69 Filed 06/18/10 Page 1 of 33 PageID #: 1450
United States Court of Appeals
For the First Circuit
No. 09-1759 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, Appellants, v.
DONALD L. CARCIERI, in his official capacity as Governor of the State of Rhode Island; JANE A. HAYWARD, in her
official capacity as Secretary of the Executive Office of Health & Human Services; and PATRICIA MARTÍNEZ, in her official capacity as Director of the Department of Children, Youth and Families, Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before Torruella, Circuit Judge, Souter,* Associate Justice, and Stahl, Circuit Judge.
Susan Lambiase, Children's Rights, with whom Marcia Robinson Lowry, Shirim Nothenberg, Jessica Polansky, John W. Dineen, Vernon Winters, Weil, Gotshal & Manges LLP, and Jametta O. Alston, Rhode
* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

Case 1:07-cv-00241-ML -LDA Document 69 Filed 06/18/10 Page 2 of 33 PageID #: 1451
Island Office of the Child Advocate, were on brief for appellants. Erik S. Pitchal, Assistant Clinical Professor of Law, Suffolk
University Law School, for amici curiae the National Association of Counsel for Children, the Children's Law Center of Los Angeles, Youth Law Center, the Hofstra Child Advocacy Clinic, the Legal Aid Society, the Children's Advocacy Institute, Children's Law Center of Massachusetts, Lawyers for Children, Prof. Don Duquette, the Rutgers Child Advocacy Center, Children's Law Center of Minnesota, the University of Miami School of Law's Children & Youth Law Clinic, National Center for Youth Law, First Star, and Prof. Michael Dale, in support of appellants.
Andrew B. Prescott, Steven M. Richard, Nixon Peabody LLP, for amici curiae Rhode Island Affiliate, American Civil Liberties Union, in support of appellants and in favor of reversal.
Seema A. Misra, Jennifer C. Arnett, Stroock & Stroock & Lavan LLP, for amici curiae The Field Center for Children's Policy Practice & Research at the University of Pennsylvania, in support of appellants and in support of reversal.
Brenda D. Baum, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, and James R. Lee, Assistant Attorney General, Rhode Island Department of the Attorney General, were on brief for appellees.
June 18, 2010
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TORRUELLA, Circuit Judge. This appeal raises important questions regarding an individual's capacity to sue as a representative of minors in state foster care custody alleging violations of their civil rights.
On June 28, 2007, Mary Melvin, Kathleen J. Collins, and Gregory C. Elliott (collectively, the proposed Next Friends), filed a class action suit on behalf of foster care children who are under the legal custody of Rhode Island's Department of Children, Youth and Families (DCYF). The complaint sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and alleged that by maintaining systemic deficiencies in Rhode Island's child welfare and foster care systems, the state has deprived plaintiffs of their rights under the United States Constitution and several federal statutes. The proposed Next Friends sought to pursue the present civil rights case on behalf of foster care children who are unable to sue for themselves due to their minority.1 The district court dismissed the complaint finding that the Next Friends lacked capacity to sue on behalf of Plaintiffs.
1 The complaint initially named ten children as Plaintiffs. However, three of the children were subsequently adopted and therefore, they are not currently under DCYF custody. The district court concluded that the children's adoption rendered their claims moot and Plaintiffs have not challenged this conclusion on appeal. After the district court rendered its opinion, Plaintiff Deanna H. was adopted and thus her claims are also moot. The remaining named Plaintiffs, who are identified by pseudonyms to protect their identities, are Sam and Tony M, David T., Danny and Michael M., and Caesar S.
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For the reasons stated below, we reverse the district court's order and judgment dismissing the children's complaint and remand the case with instructions to allow the Next Friends to represent the named Plaintiffs in this suit.
I. A. Because this appeal follows the district court's dismissal of Plaintiffs' complaint, we recite the relevant facts "accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the plaintiffs' favor." Hostar Marine Transp. Sys., Inc. v. United States, 592 F.3d 202, 207 (1st Cir. 2010) (citing Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009)). But given that the district court made findings of fact regarding the proposed Next Friends authority to represent the children in this case, we review the court's factual findings for clear error. See Skwira v. United States, 344 F.3d 64, 72 (1st Cir. 2003). The present suit was initiated by Rhode Island's Child Advocate, Jametta O. Alston.2 Under Rhode Island law, the Child Advocate is endowed with the responsibility of protecting the interests and rights of children who are placed under DCYF custody.
2 Defendants do not challenge the Child Advocate's statutory authority to initiate the present suit on the children's behalf.
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See R.I. Gen. Laws § 42-73-7.3 The Child Advocate claims that due to widespread and serious deficiencies in Rhode Island's child welfare system, she endeavored to identify individuals suited to vindicate the children's constitutional rights in federal court. She explains that the persons closely connected to the children either have potential conflicts of interests with the children or declined to be involved in the suit on the children's behalf. The Child Advocate claims that the proposed Next Friends are wellsuited to litigate the present class action suit on behalf of the children who were named as Plaintiffs as they "are sincerely motivated to pursue the best interests of the children."
On June 28, 2007, the proposed Next Friends filed the present class action suit on behalf of the named Plaintiffs.4 The class was defined as "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." The complaint sought declaratory and injunctive relief against defendants, Donald L. Carcieri, in his official capacity as the Governor of Rhode Island; Jane A. Hayward in her official capacity
3 Among others, the Child Advocate has the power to recommend changes in the child welfare system and to "take all possible action including, but not limited to programs of public education, legislative advocacy, and formal legal action, to secure and ensure the legal, civil, and special rights of children" that are under DCYF custody. R.I. Gen. Laws § 42-73-7. 4 Plaintiffs filed an amended complaint on September 7, 2007.
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as Rhode Island's Secretary of the Executive Office of Health and Human Services; and Patricia Martínez, in her official capacity as Director of the DCYF (collectively, "Defendants"). The complaint alleged violations of the children's substantive and procedural due process rights under the Fourteenth and Fifth Amendments to the United States Constitution; deprivations of the children's liberty, privacy, and associational rights protected by the First and Fourteenth Amendments; violations of their statutory rights under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 621; 622; 629; 671; 672; 675 and its accompanying regulations 45 C.F.R. §§ 1355-57; as well as breach of contractual obligations between the state of Rhode Island and the federal government to which the children claim to be third party beneficiaries.
The crux of Plaintiffs' complaint is that foster care children in Rhode Island are neglected and abused both physically and emotionally, and are generally deprived of the care and protection the DCYF owes to them in violation of the children's right to a safe living environment. The complaint further stated that Defendants engaged in a policy, pattern, practice or custom of placing children in foster care homes and other institutions that do not meet the children's needs, thereby depriving them of their substantive due process rights. Finally, the complaint alleged that the DCYF follows a pattern or practice of placing foster care children in temporary foster care homes, shelters, and other
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institutions for inordinate amounts of time and fails to comply
with the state's obligation under the Adoption and Child Welfare
Act to provide children with safe and permanent placements.
In due course, Defendants filed a motion to dismiss the
complaint for lack of subject matter jurisdiction arguing, inter
alia, that the proposed Next Friends lacked standing to sue on behalf of the named Plaintiffs.5 Defendants maintained that the
children were adequately represented by guardians ad litem who were
appointed by Rhode Island Family court to represent the children in
family court proceedings. Additionally, Defendants claimed that
the proposed Next Friends could not show they were truly dedicated
to the children's best interests or that they had a significant
relationship with the children.
The district court held evidentiary hearings to evaluate
the proposed Next Friends' capacity to represent the children's
interests. During the course of several days of hearings, the
5 Although Defendants claim the proposed Next Friends lack standing to sue, we are not here concerned with whether the proposed Next Friends have suffered an injury within the context of an Article III case or controversy. From the face of the complaint it is clear that the children are the real party in interest and their standing to sue has not been challenged in this case. Morgan v. Potter, 157 U.S. 195, 198 (1895) (explaining that a Next Friend is "neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another"). We therefore construe Defendants' claims as challenging the proposed Next Friend's capacity to sue on behalf of the children. See Gardner by Gardner v. Parson, 874 F.2d 131, 137 n.9 (3d Cir. 1989) (explaining that Article III standing is not implicated when an individual claims "capacity to sue as representative of an incompetent" pursuant to Rule 17(c)).
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proposed Next Friends explained their relationship with Plaintiffs and their motivation to serve as their representatives in this case. In a decision and order dated April 29, 2008, the district court granted Defendants' motion to dismiss. The court held that the family court-appointed guardians ad litem were the children's duly appointed representatives as defined in Rule 17(c) of the Federal Rules of Civil Procedure. The district court also stated that the proposed Next Friends had failed to show they had a significant relationship with the children they wanted to represent and therefore declined to allow the proposed Next Friends to serve as the children's representatives in federal court.
Plaintiffs filed this timely appeal. They challenge the district court's decision to deny Next Friend status to the proposed Next Friends. They also claim the district court erred in dismissing the suit without first ensuring that the children enjoyed adequate representation in federal court.
B. Plaintiffs are foster care children who remain in the legal custody of the DCYF. It is undisputed that Rhode Island's family court has been involved in the decision-making process regarding the children's well being and interests. However, as the complaint and the record show, Plaintiffs have been placed in temporary homes, shelters, and state facilities for several years.
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Plaintiffs have also been exposed to abuse and neglect, and no permanent placements have been found for them.6
Before addressing the legal issues raised in this appeal, we examine the children's background and their life histories within Rhode Island's child welfare and foster care systems.
1. David T. David T. ("David") has been in DCYF custody since 1996. He was removed from his mother's custody due to neglect. In April 1998, David's mother lost her parental rights and the DCYF was named David's legal guardian. In 1996, David was placed with a foster mother, Ms. Mary Melvin ("Ms. Melvin"). After living with Ms. Melvin, David was placed in shelters and later in several psychiatric facilities as he exhibited behavioral problems and was diagnosed with several psychological disorders. In December 2000, David was transferred to St. Vincent's Home, a residential treatment facility where he lived for a period of two years. In 2003, David was moved to a different treatment facility where he received individualized treatment for several emotional and psychological disorders. By November 2004, David had not been placed for adoption. David's case plan then directed that adoption was not feasible and that an
6 In their complaint, Plaintiffs claim they have suffered great harms while in DCYF custody due to the DCYF's negligence and failure to provide them with safe and permanent placements. We, however, do not advance any criteria regarding the merits of Plaintiffs' claims.
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alternate permanent placement was to be found. In February 2006, David was moved to yet another psychiatric facility where he also received treatment for his mental health problems. In 2007, David was transferred to another facility in Massachusetts where he receives treatment and educational services.
2. Caesar Caesar was first placed in DCYF custody in December 2002 due to neglect. Caesar was sixteen-months-old. Since then, Caesar has navigated the foster care system. He has lived in shelters, foster care homes, and temporary family placements. From January 2003 until September 2004, Caesar lived with a paternal aunt who had drug problems. Caesar was then placed with a great-aunt for nine days. Despite allegations that he was beaten at his aunt's house, in October 2004 Caesar was once again placed in his aunt's custody. In light of evidence that Caesar was beaten at his aunt's house, he was then moved to his paternal grandmother in September 2005. In 2007, the family court granted the DCYF's petition to terminate parental rights and determined that Caesar was a candidate for adoption. Caesar remains in DCYF custody. 3. Sam and Tony M. Sam and Tony M. are brothers who were placed in DCYF custody in May 1999 due to allegations that their mother had substance abuse and mental health problems. The complaint details that the boys were victims of sexual and physical abuse and
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neglect. After the DCYF took custody of Sam and Tony in 1999, they were placed in the home of a family friend. From 2000 to 2003, Sam and Tony were returned to their birth mother's custody. During that period, the boys were abused and neglected by their birth mother, step-father and grand-father. In 2003, Sam and Tony were once again placed in foster care. They were subsequently returned to their birth mother's custody until May 2004 when they were placed in a group care facility. In 2005, Sam and Tony were transferred to different psychiatric hospitals where they received visits from their maternal grandparents. The record reveals that the boys continue to live in separate institutions. On August 4, 2006, the family court determined that reasonable efforts to reunify Sam and Tony with their birth mother were no longer required; stated that the DCYF had filed for termination of parental rights; and decreed that Sam and Tony were candidates for adoption.
4. Danny and Michael B. Due to parental neglect, siblings Danny and Michael B. have been in DCYF custody since April 2005. They were initially placed with their maternal great-grandmother. The greatgrandmother, however, was unable to care for the boys and they were then placed in separate foster homes. Michael was later returned to his great-grandmother's home, while Danny was placed in a foster home where he was sexually abused. Both boys have suffered from
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mental health problems which the complaint alleges were not properly and timely addressed by the DCYF. In July 2006, Danny was sexually assaulted in his foster home and was then moved to his great-grandmother's home where Michael resides. Danny was eventually transferred to a state group facility where he receives treatment for mental health problems. Parental rights were terminated in November 2006 and the DCYF is currently the boys' legal guardian.
II. We address two main issues in this appeal. First, we examine whether the children have duly appointed representatives that would preclude appointment of the proposed Next Friends in this case. Second, we examine the propriety of allowing the proposed Next Friends to represent the children in the present suit. Rule 17(c) of the Federal Rules of Civil Procedure governs a minor or incompetent's access to federal court. It directs that a minor or incompetent may sue in federal court through a duly appointed representative which includes a general guardian, committee, conservator, or like fiduciary. Fed. R. Civ. P. 17(c)(1). If a minor lacks a general guardian or a duly appointed representative, Rule 17(c)(2) directs the court either appoint a legal guardian or Next Friend, or issue an order to
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protect a minor or incompetent who is unrepresented in the federal suit. Fed. R. Civ. P. 17(c)(2).
The appointment of a Next Friend or guardian ad litem is not mandatory. Thus, where a minor or incompetent is represented by a general guardian or a duly appointed representative, a Next Friend need not be appointed. See Developmental Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281 (1st Cir. 1982) (declining to appoint Next Friend where plaintiffs had general guardians or duly appointed guardians who opposed the federal suit); Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989)(holding that a minor's mother lacked authority to proceed as Next Friend in federal suit where the federal court had appointed a guardian ad litem to represent the child). However, Rule 17(c) "gives a federal court power to authorize someone other than a lawful representative to sue on behalf of an infant or incompetent person where that representative is unable, unwilling or refuses to act or has interests which conflict with those of the infant or incompetent." Ad Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d Cir. 1989); Melton, 689 F.2d at 285 (stating that Rule 17(c) allows federal courts to appoint a Next Friend or guardian ad litem where there is a conflict of interest between the minor and her general representative).
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The minor's best interests are of paramount importance in deciding whether a Next Friend should be appointed, but the ultimate "decision as to whether or not to appoint [a Next Friend or guardian ad litem] rests with the sound discretion of the district court and will not be disturbed unless there has been an abuse of its authority." Melton, 689 F.2d at 285. See also Fernández-Vargas v. Pfizer, 522 F.3d 55, 66 (1st Cir. 2008).
III. A.
It is undisputed that Plaintiffs have been represented in Rhode Island family court proceedings by court-appointed guardians ad litem, also known as Court Appointed Special Advocates ("CASA attorneys").7 The record shows that throughout the different custody and child welfare proceedings, each child was represented by court-appointed guardians ad litem or CASA Attorneys; while some children were represented by five or six guardians throughout the course of several years.
The district court found that the family court-appointed guardians ad litem or CASA attorneys were the children's duly
7 Under Rhode Island law, "[a]ny child who is alleged to be abused or neglected as a subject of a petition filed in family court, . . . shall have a guardian ad litem and/or a court-appointed special advocate (CASA) appointed by the Court to represent th[e] child, all in the discretion of the court." R.I. Gen. Laws § 4011-14. "The Office of the Court Appointed Special Advocate is an arm of the Rhode Island Family Court. It consists of several attorneys who are knowledgeable in juvenile law, social workers and volunteers from the community." 03-011-001 R.I. Code R. (2009).
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appointed representatives and thereby concluded that a suit by Next Friend was inappropriate. Plaintiffs contend, however, that nothing in the Rhode Island statutes and regulations dealing with court appointed guardians ad litem or CASA attorneys authorizes these advocates to represent children beyond the confines of the family court proceedings in which they are appointed. Defendants explain that guardians ad litem under Rhode Island law have authority to represent children in family court proceedings up until the child is adopted and they maintain the district court was correct in holding the guardians ad litem are the children's duly appointed representatives.
State law generally governs an individual's capacity to represent a minor or incompetent in federal court. Fed. R. Civ. P. 17(b)(3) (stating that an individual's capacity to sue in a representative capacity is determined by "the law of the state where the court is located"); Melton, 689 F.2d at 285. We thus exercise plenary review over the district court's determination regarding Rhode Island law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991). We also review de novo the district court's interpretation of Rule 17(c). See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 5 (1st Cir. 2002) (reviewing de novo the court's interpretation of Federal Rule of Civil Procedure 12(c)).
Under Rhode Island law, the family court has authority to "[a]ssure that a guardian ad litem and/or a court appointed special
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advocate [is] appointed to represent the child."8 R.I. Gen. Laws § 40-11-7.1 (b)(3); see also § 40-11-14. Family court-appointed guardians ad litem or CASA attorneys represent a minor throughout the course of the family court proceedings in which they are appointed. Zinni v. Zinni, 238 A.2d 373, 376 (R.I. 1968). If the child is placed under DCYF custody, the guardian's representation continues throughout family court proceedings until a petition for adoption is granted. In re Christina D., 525 A.2d 1306, 1308 (R.I. 1987).
In construing the scope of a guardian ad litem's authority, the Rhode Island Supreme Court has explained that the family court exercises its power of appointment "to the end that the guardian . . . can assist the court in determining the rights of the minor in the tribunal where the guardian is appointed." Zinni, 238 A.2d at 376 (emphasis added). Rhode Island courts also recognize that where a guardian is properly appointed to represent the child in family court proceedings, the guardian's authority may extend to appellate proceedings, provided that the minor's interests are involved on appeal. Id.
8 An amicus brief filed by the National Association of Counsel for Children ("NACC") in conjunction with other nonprofit and public interest organizations, explains that Rhode Island's regulations regarding family court guardians ad litem or CASA attorneys are consistent with national standards of practice that limit the attorneys' authority and responsibilities to child welfare and dependency matters brought before the court in which the attorney is appointed.
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While a family court appointment allows the guardian to represent her ward on appeal, we have not found any Rhode Island authority for the proposition that guardians appointed by the family court have power to represent their wards in non-family court proceedings.9 Moreover, Rhode Island law seems to cabin the guardian ad litem's authority to the proceedings in which the guardian is appointed. See R.I. Gen. Laws § 40-11-7.1 (b)(3), § 40-11-14; see also Exec. Order, R.I. S. Ct. No. 2004-02 at 2, ("Court appointed counsel . . . provide representation throughout all stages of adjudication in Family Court.").
Not just any guardian is allowed to represent a minor or incompetent in federal court. See Morgan, 157 U.S. at 197 (stating that a guardian's authority is generally limited to the state court and explaining that a guardian may only sue in a federal court sitting in another state if the laws of the state allow the foreign guardian to seek relief). Since it does not appear that Rhode Island law confers general authority on guardians ad litem or CASA attorneys to represent the children outside family court proceedings, we find that the children's guardians ad litem cannot
9 The amicus brief filed by the NACC explains that in many instances, guardians ad litem or CASA attorneys may be unable to represent the children in federal court due to large caseloads. For example, a report issued by the Rhode Island Family Court reveals that CASA attorneys on average manage 400 cases. NACC's Amicus Br. at 21 citing, Jeremiah S. Jeremiah, Jr., Chief Judge, Judiciary of Rhode Island, Family Court: Overview of its Departments and Functions (2006), http://www.courts.state.ri. us/family/overview.htm.
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be considered the children's general guardians, like fiduciaries or
duly appointed Rule 17(c) representatives.10 Thus, the district
court erred in finding that the state-appointed guardians ad litem
or CASA advocates precluded Plaintiffs from filing suit by a Next
Friend.11
B.
Defendants further claim that Plaintiffs have the burden
of showing that the children's relatives either approved the filing
of the federal suit on the children's behalf or did not oppose it.
It is their contention that the Child Advocate's allegation that
10 The district court stated that the guardians ad litem were the children's duly appointed representatives. However, it never clarified whether it considered the guardians ad litem to be the children's "general guardian, committee, conservator or like fiduciary." Fed. R. Civ. P. 17(c)(1). To the extent that the district court found the guardians ad litem were the children's "dully appointed representatives," we assume that the court considered, without stating so, that the guardians met the requirements of a Rule 17(c)(1) representative.
11 We recognize that in the exercise of its discretion to appoint a Next Friend under Rule 17(c)(2), a federal court may find that a state-appointed guardian ad litem may serve as a minor's duly appointed Rule 17(c) representative if the guardian petitions the federal court to represent the child and the court finds the guardian is an appropriate Next Friend. See M.K. through Hall v. Harter, 716 F. Supp. 1333, 1335 (E.D. Cal. 1989) (finding that a state-appointed guardian ad litem could serve as a minor's Rule 17(c) representative); see also Susan R.M. by Charles L.M. v. Ne. Indep. Sch. Dist., 818 F.2d 455 (5th Cir. 1987) (holding that where state law vests authority on a state-appointed managing conservator to bring actions on behalf of a minor, the conservator could bring a federal suit as the infant's representative, thereby depriving the infant's father of "standing" to pursue a federal suit as Next Friend). In the present suit, however, the state-appointed guardians ad litem have not requested appointment as Next Friends.
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"[t]he persons most closely connected to the children, including foster parents, guardians ad litem, or relatives, either posed a potential conflict or expressed concern regarding possible retaliation from [DCYF] or other state entities and declined to become involved," is insufficient to allow the proposed Next Friends to represent the children.
The record shows that Plaintiff David has an older brother who called David on a weekly basis and visited him at least twice from 2004 through 2007. Although Caesar's parents lost their parental rights and Caesar was placed for adoption in 2007, in 2003 and 2004 Caesar was placed with a paternal aunt and in 2005 he was placed with his paternal grandmother. Likewise, although Plaintiffs Danny and Michael are under the legal guardianship of the DCYF, the record shows that in 2005 Michael was placed under the care of his maternal great grandmother. As to Plaintiffs Sam and Tony, the record reveals that their grandparents regularly visited the boys from April to July 2006.
While the children may have maintained contact with some relatives, there is no indication that these relatives could serve as the children's general guardians or representatives. In examining an individual's suitability to pursue a federal suit as a Next Friend, we have found that no Next Friend appointment is needed where a minor or incompetent has a general or duly appointed guardian who is available to represent the minor or incompetent and
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who opposes the filing of the federal suit by a Next Friend. Melton, 689 F.2d at 285-86 (holding that minor's mother, who was considered the minor's natural guardian under state law and had acted in the past to safeguard the minor's well-being, could be recognized as the minor's representative). But we are not here faced with plaintiffs who have general guardians who could preclude a Next Friend appointment or whose consent may be needed to file suit in federal court. See Garrick, 888 F.2d at 693 (holding that a minor's mother lacked authority to proceed as Next Friend in suit where the court had appointed a guardian ad litem to represent the child as to that particular matter). In this case, the children's relatives have not moved to represent them in federal court; there is no indication that they are willing or able to represent them; and Plaintiffs have alleged that these relatives either refused or are unable to sue on their behalf.12
Moreover, Plaintiffs have been placed under the legal custody and/or guardianship of the state of Rhode Island. It is thus reasonable to conclude that the adults with whom Plaintiffs
12 Because Plaintiffs sued Defendants for the DCYF's alleged abuse of its trust and fiduciary duties as the children's legal custodian, we cannot sanction Defendants' attempt to oppose a Next Friend appointment and deflect a suit filed against them on the basis of a general assertion that the children may have other relatives who could represent them or who should be consulted. Given that Defendants effectively control the children's lives as the children's legal custodian, we think they are ideally suited to show that the children have relatives who could serve as the children's representatives. They have failed to do so.
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have maintained some contact are not willing, able, or available to pursue a legal action against the state of Rhode Island.13 See Greenburgh, 873 F.2d at 30 ("since the Children are no longer in the care and custody of their natural parents, those adults have little involvement with the daily aspects of the Children's schooling and are not likely to prosecute this type of action"). In these circumstances, Rule 17(c) allows federal courts discretion to appoint a Next Friend to represent the children in federal court. Id. at 29.
C. Where as here, a minor lacks a general guardian or a duly appointed representative, the court has discretion to appoint a Next Friend. The district court found that the proposed Next Friends lacked a significant relationship with the children and therefore dismissed the lawsuit. In so holding, the district court interpreted the Supreme Court's decision in Whitmore v. Arkansas, 495 U.S. 149 (1990), as requiring an individual who wishes to serve as Next Friend to show that she has a "substantial relationship" with the minor or incompetent.
13 Plaintiffs Caesar, David, Danny, and Michael, are under the DCYF's legal guardianship. Because the children's parents or natural guardians are unavailable, it is reasonable to conclude that the children lack general guardians or representatives to pursue the present suit against their legal guardian. While it appears that Sam and Tony M.'s mother still enjoys her parental rights, the boys are candidates for adoption and there is no indication in the record that after losing custody of the boys in 1999, the mother is available to represent the children.
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Defendants understand the Supreme Court's decision in Whitmore to require a significant relationship between a Next Friend and the real party in interest. But Defendants also argue that regardless of whether Whitmore should be read to require a significant relationship as a prerequisite for Next Friend status, the district court was correct in considering the existence of a significant relationship as a factor in assessing the propriety of appointing the proposed Next Friends to represent Plaintiffs. In contrast, Plaintiffs contend that Whitmore does not require a significant relationship as a prerequisite to Next Friend standing and they explain that the difficulties foster care children face in forging lasting and significant relationships cautions against requiring a significant relationship in these cases.
This is the first time we expound the criteria a Next Friend should meet in the context of a suit filed on behalf of foster care children. We undertake this analysis with guidance from other courts that have tailored the Next Friend analysis to the realities of foster care children and to the general principle that litigants should be afforded access to federal courts in pursuit of their constitutional and statutory rights. We also acknowledge the helpful amicus brief filed by the Field Center for Children's Policy, which illustrates the realities of foster care children and explains that due to maltreatment, multiple placements, and social and psychological issues, foster care
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children are often unable to forge significant relationships with the adults that are entrusted to protect the children's interests. The fact that Plaintiffs filed suit against their legal guardian for alleged violations of the state's obligations as their guardian and custodian further informs our analysis.
Next Friend capacity is not lightly granted to any individual who petitions a federal court to pursue an action on behalf of another. Id. at 163. Rule 17(c) recognizes that an individual may represent the real party in interest as a Next Friend but it offers no clear guidance regarding who may proceed as a Next Friend. In the context of a petition to appeal a state court conviction on behalf of a death row inmate, the Supreme Court held in Whitmore that a Next Friend should comply with "two firm prerequisites:" (1) an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action; and (2) a showing that the Next Friend is "truly dedicated to the best interests of the person the Next Friend seeks to represent." Id. While the Supreme Court recognized that some courts have "suggested" that a Next Friend must also have a significant relationship with the real party in interest, the Court did not hold that a significant relationship is a necessary prerequisite for Next Friend status. Id. at 163-64; see also Whitmore, 495 U.S. at 177 (Marshall, J., dissenting) (recognizing
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that the majority opinion suggested, without holding, that a Next Friend may have to prove she has "some significant relationship with the real party in interest").
Just as the parties in this case dispute whether Whitmore should be interpreted to require a significant relationship between a proposed Next Friend and the real party in interest, federal courts have debated, mainly in the context of prisoner habeas litigation, whether and to what extent a significant relationship is or should be required for Next Friend status. This Court has not decided whether a Next Friend must meet the significant relationship requirement as a prerequisite to Next Friend status. See Figueroa v. Rivera, 147 F.3d 77, 82 (1st Cir. 1998)(declining to appoint Next Friend in the prisoner litigation context after finding that the real party in interest had capacity to pursue the habeas petition and explaining that an individual who seeks to file a habeas petition as a prisoner's Next Friend needs to show "there is a valid reason why she is better situated than the prisoner to pursue the writ"). However, other circuit courts have held that some sort of significant relationship is necessary to assess an individual's suitability to pursue a habeas petition on behalf of another.
For example, in Hamdi v. Rumsfeld, the Fourth Circuit interpreted Whitmore as requiring a finding that the proposed Next Friend has a significant relationship with the real party in
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interest. 294 F.3d 598, 604 (4th Cir. 2002) (declining to confer Next Friend standing to public defender and private citizen to pursue habeas petition on behalf of military detainee where the proposed Next Friends had no prior relationship or communication with petitioner); see also Padilla v. Rumsfeld, 352 F.3d 695, 703 n.7 (2d Cir. 2003)(assuming there is a significant relationship requirement for Next Friend status and finding that an attorney had a significant relationship with petitioner where the attorney had advised petitioner during his military confinement; interviewed petitioner and met with his family; and represented petitioner during the course of legal proceedings related to his confinement), overruled on other grounds by Rumsfeld v. Padilla, 542 U.S. 426 (2004); Centobie v. Campbell, 407 F.3d 1149 (11th Cir. 2005) (holding that public defender lacked a significant relationship with petitioner where the attorney had never represented petitioner and lacked any other relationship with him).
In Hamdi, however, the Fourth Circuit court declined to decide "how significant" the relationship had to be to satisfy Next Friend status. 294 F.3d at 604. More importantly for our analysis, the court clarified that where an individual "has no significant relationships," a significant relationship might not be required in order to allow the person to proceed through a Next Friend. Id. ("We do not have here the situation of someone who has no significant relationships. If we did, this might be a different
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case."). Similarly, the Ninth Circuit has cautioned that "the contours of the requisite 'significant relationship' do not remain static, but must necessarily adapt to the circumstances." Coal. of Clergy, Lawyers & Professors v. Bush 310 F.3d 1153, 1162 (9th Cir. 2002). Therefore, where the real party in interest lacks "a relative, friend, or even a diplomatic delegation able or willing to act on their behalf[,] . . . a person with 'some' relationship conveying some modicum of authority or consent, 'significant' in comparison to the detainee's other relationships, could serve as the next friend." Id.
In evaluating an individual's capacity to serve as Next Friend for minors who lack ties with their parents and family members, federal courts have rejected a rigid application of the significant relationship requirement, holding that the common-law concept of Next Friend is capacious enough to include individuals who pursue a suit in good faith on behalf of a minor or incompetent. See Greenburgh, 873 F.2d at 30; Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920 (E.D. Mich. April 17, 2007)(allowing foster care children to appear in federal court by Next Friends who had met the children through the state's foster care system and finding that plaintiff's former foster care parent was an adequate Next Friend as she was familiar with the child's circumstances); Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y. 1976). In this vein, the Second Circuit held in Greenburgh that
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"court[s] should consider the good faith of those claiming to speak for the infant and satisfy [themselves] that the 'next friend' is motivated by a sincere desire to seek justice on the infant's behalf." 873 F.2d at 30.
In contrast, the Seventh Circuit adheres to the view that in the interest of discouraging suits by individuals who do not have concrete stakes in a litigation and who only have ideological stakes in the minor's case, Whitmore should be read to require a significant relationship. T.W. & M.W. by Enk v. Brophy, 124 F.3d 893, 897 (7th Cir. 1997) ("not just anyone who expresses an interest in the subject matter of a suit is eligible to be the plaintiff's next friend."). Although the Seventh Circuit seems to have adopted the significant relationship requirement, it also clarified that
if a close relative is unavailable and the child has no conflict-free general representative the court may appoint a personal friend of the plaintiff or his family, a professional who has worked with the child, or, in desperate circumstances, a stranger whom the court finds to be especially suitable to represent the child's interests in the litigation. Id. While we agree that the significant relationship requirement may avert litigation by individuals who lack a concrete stake in the litigation, and also "enhances the probability that a petitioner is a suitable Next Friend," Coal. of Clergy, Lawyers &
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Professors, 310 F.3d at 1162, we believe that because these foster care children lack significant ties with their parents and have been placed under the state's legal custody and guardianship, a significant relationship need not be required as a prerequisite to Next Friend status. Important social interests are advanced by allowing minors access to a judicial forum to vindicate their constitutional rights through a Next Friend that the court finds has a good faith interest in pursuing a federal claim on the minor's behalf; particularly where, as here, the minors seek relief for alleged violations of the guardian's duty to protect them.
In determining whether a proposed Next Friend is "truly dedicated to the best interests" of the minor, courts may consider the individual's familiarity with the litigation, the reasons that move her to pursue the litigation, and her ability to pursue the case on the child's behalf. Evidence that the proposed Next Friend has met the child he seeks to represent certainly enhances the individual's suitability as a Next Friend. See id. at 1162 (explaining that the more attenuated the relationship between the proposed Next Friend and the real party in interest, the less likely the Next Friend can know the party's best interests). But access to federal courts need not be denied to a minor Plaintiff if the court finds that the proposed Next Friend has a good faith belief that she can adequately represent the child in federal court. As the Second Circuit aptly stated in Greenburgh, "[w]e
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would not sanction any attempt to assert the legitimate rights of children as a mere pretext for advancing ulterior political or economic aims." 873 F.2d at 31.
Having clarified the hallmarks a Next Friend should bear, and given that the record developed by the district court amply reveals the extent of the proposed Next Friends' interest in the present suit and the reasons why they chose to litigate the present suit on the children's behalf, we proceed to determine whether they are suitable Next Friends. We examine each Next Friend in turn.
1. Ms. Melvin, Next Friend to David Ms. Melvin served as a foster parent in the Rhode Island foster care system for twenty years. She took David as her foster child in 1996 and had David under her care and custody for two years. During David's stay with Ms. Melvin, Ms. Melvin had some contact with DCYF social workers and attended various Family Court proceedings. After David was removed from her home to be placed for adoption, Ms. Melvin was allowed to visit him at the shelter in which he was placed and was even able spend some days with him. She lost contact with David and has not seen him since approximately 1998. Ms. Melvin testified that she agreed to be David's Next Friend because she considers David part of her family and is willing to help him. She explained that as a Next Friend to David she is trying to "help make things better for him." She understood
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that as David's Next Friend she could be called to participate in settlement discussions and she would have to make decisions on David's behalf.
On the basis of this evidence, Ms. Melvin has demonstrated she is acting in good faith and is genuinely motivated to help David seek relief in federal court. Although Ms. Melvin need not necessarily show she had a significant relationship with David, it is undeniable that she is familiar with David's situation as she cared for him for two years, and is aware of the inner workings of the foster care system having served as a foster mother for twenty years. Ms. Melvin's suitability is not undermined by the fact that she has not seen David for several years given that there is no indication that she is pursing this litigation for reasons other than protecting David's interests. We thus find that Ms. Melvin may proceed as David's Next Friend.
2. Kathleen Collins ("Ms. Collins"), Next Friend to Caesar Ms. Collins was Caesar's school psychologist during the 2006-2007 school year. Ms. Collins testified that she worked with Caesar in the classroom setting as well as outside of class and was able to "bond" with Caesar during that year. She last saw Caesar towards the end of May 2007 and was unable to contact him despite attempts to do so. Collins testified that she has worked with a number of foster care children. She understands that a Next Friend appears
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before the court to "represent the interests of [a] particular child in getting justice from the system, to assist . . . and support him in seeking some sort of . . . justice." Collins testified that she agreed to be Caesar's Next Friend because she believes this is an important case and the children deserve justice. She stated she was available to pursue the lawsuit and agreed she would be available to make decisions on Caesar's behalf.
It is beyond question that Ms. Collins wishes to represent Caesar's interests in this lawsuit in order to protect his interests. Her suitability as a Next Friend is certainly enhanced by the fact that she knows Caesar and is familiar with his situation. Ms. Collins understands her role as Next Friend and is willing and able to litigate on Caesar's behalf. She is also familiar with the realities foster care children face and has shown an interest in helping Caesar. This is enough to show she is truly dedicated to Caesar's best interests. We believe that Ms. Collins is a suitable Next Friend to Caesar.
3. Gregory Elliot ("Dr. Elliot"), Next Friend to Sam, Tony, Danny, and Michael14 Dr. Elliot is an Associate Professor of Sociology at Brown University with a focus on child maltreatment. Dr. Elliot admitted he has not met the children or their relatives but
14 Dr. Elliot also petitioned to sue as Next Friend for Deanna. The record shows that Deanna was adopted and therefore the suit became moot as to her.
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explained that due to his research on social psychology and child maltreatment, he is familiar with the circumstances foster care children face while in the state's custody. He understands that a Next Friend is "someone . . . of legal competence who acts on behalf of minors who have no legal competence in the court." Dr. Elliot testified that after studying the complaint and the documents filed in the case regarding the children's situation, he believes the children have been placed in dire circumstances and concluded it was in the children's best interests to pursue the present suit.
The district court found that because Dr. Elliot had not met the children and had not reviewed the children's family court and medical files, he could not serve as Next Friend. We do not believe this automatically disqualifies him as a Next Friend, however. Dr. Elliot testified he is aware of the issues and problems children face in foster care and he is familiar with the perils to which Plaintiffs have been exposed. He showed that due to his expertise and research he has a good faith desire to pursue the children's best interests in federal court. We find no evidence that Dr. Elliot is akin to the often feared ideologue that pursues an action for purely political or ideological reasons. Nothing in the record questions Dr. Elliot's good faith or indicates that he is pursuing the present suit for reasons other than a genuine concern for the children's well-being. Dr. Elliot
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is adequately prepared and willing to actively prosecute the types of claims the children have raised against the state of Rhode Island. We thus find that Dr. Elliot is an appropriate Next Friend.
Although appointment of a Next Friend is not mandatory, nothing in the record intimates that the proposed Next Friends are not acting in good faith or that they won't be able to pursue this suit on the children's behalf. We thus find that the proposed Next Friends are suited to represent the children in this case.15
IV.
For the foregoing reasons the order of the district court dismissing the complaint is reversed. We remand the case with directions to reinstate the complaint and allow Ms. Melvin, Ms. Collins, and Dr. Elliott to proceed as the children's Next Friends.
Reversed and Remanded.
15 Because we find that the district court abused its discretion in declining to appoint the proposed Next Friends to represent Plaintiffs, we need not address the propriety of the court's decision to dismiss the complaint without appointing other Next Friends. See Adelman on Behalf of Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984)(reversing the district court's dismissal of complaint filed on behalf of an incompetent and holding that the district court improperly dismissed the case without first determining whether the incompetent's interests were adequately represented); Gardner, 874 F.2d at 140 (holding that the district court, after finding that the proposed Next Friends were inadequate, "should have appointed a next friend or at the least held a hearing to determine whether a next friend should be appointed").
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 Case 1:07-cv-00241-ML -LDA Document 79 Filed 11/01/10 Page 1 of 105 PageID #: 1501

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., by Next Friend

:

Gregory c. Elliot; CEASER S., by Next

:

Friend Kathleen J. Collins; DAVID T., by

:

Next Friend Mary Melvin; BRIANA,

:

ALEXIS, CLARE and DEANNE H.,

:

by Next Friend Gregory C. Elliott; and

:

DANNY and MICHAEL B., by Next Friend :

Gregory C. Elliott; for themselves and those :

similarly situated

:

:

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 :

C.A. 07-241ML

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(1) AND (6) OF THE FEDERAL RULES OF CIVIL PROCEDURE

I. INTRODUCTION On October 1, 2007, Defendants Donald L. Carcieri, in his official capacity as
Governor of the State of Rhode Island, Jane Hayward, in her official capacity as then 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 (hereinafter “State” Defendants) filed a Motion to Dismiss Plaintiffs’ Amended Complaint pursuant Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and, in the alternative 12(b)(6) for failure to state a claim upon which relief

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may be granted. The Defendants’ sought dismissal of the Plaintiffs’ Amended Complaint on the grounds that: (1) the District Court lacked of subject matter jurisdiction under the application of Younger Abstention Doctrine and/or Rooker-Feldman Abstention Doctrine; (2) the named plaintiffs’ “next friends” were inappropriate and lack standing; (3) the claims of Brianna, Alexis and Clare H. were moot as the three children had been adopted; and (4) the plaintiffs did not have a private right of action under the Adoption Assistance and Child Welfare Act of 1980, as amended (“AACWA”). The claims of Brianna, Alexis and Clare H. were dismissed for mootness.
On April 29, 2009 Senior District Judge Lageuex dismissed Plaintiffs’ Amended Complaint having found that the proposed Next Friends (Mary Melvin, Kathleen Collins and Gregory Elliott) did not have the “power, authority or standing to represent the minor Plaintiffs” under Fed. R.Civ. P. 17(c). Sam M. by Elliott v. Carcieri, 610 F.Supp.2d 171 (D.R.I. 2009). The Plaintiffs’ appealed the dismissal on Rule 17(c) grounds to the First Circuit Court of Appeals. On June 18, 2010 the First Circuit reversed the District Judge’s dismissal of the lawsuit and remanded the case with instructions to allow the Next Friends to represent the named Plaintiffs in this suit. Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77 (1st Cir. 2010). On August 4, 2010 Senior District Court Judge Lagueux recused himself.
The Defendants’ file this Motion to Dismiss in accordance with this Court’s September 30, 2010 instruction. The Defendants submit that Plaintiffs’ Amended Complaint should be dismissed on the grounds that: (1) the District Court lacks subject matter jurisdiction under the application of Younger Abstention Doctrine and/or RookerFeldman Abstention Doctrine; (2) the claims of Deanna H., Caesar S., Michael B. and
2

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Sam and Tony M. are moot as the five children have been adopted; and (3) the plaintiffs

do not have a private right of action under the AACWA.

II.

PLAINTIFFS’ AMENDED COMPLAINT

The instant Amended Complaint [Document 12], and similar versions thereof,

have been filed in various states throughout the country by Children’s Rights

organization and local counsel. The allegations in the amended complaint against Rhode

Island are strikingly similar to those asserted against Nebraska, which were dismissed by

the United States District Court for the District of Nebraska in Carson P. ex rel. Foreman

v. Heineman, 240 F.R.D. 456 (D.Neb. 2007).

At the time of its filing, the Amended Complaint against Rhode Island, the ten (10) named plaintiffs1 are minors who have purportedly filed this suit entitled “Class

Action” through their “next friends” Gregory C. Elliot, Kathleen J. Collins and Mary

Melvin. Amended Complaint at ¶¶ 34, 55, 69, 82 and 96. They seek declaratory and

injunctive relief under 42 U.S.C. §. The Amended Complaint alleges that the named

plaintiffs Sam M., Tony M., David T., Briana H., Alexis H., Clare H., Deanna H., Danny

and Michael B. are children in the legal custody of DCYF due to a report or suspicion of

abuse or neglect. Amended Complaint ¶¶11-12.

The named plaintiffs seek “declaratory and injunctive relief to compel Defendants

… to meet the legal obligations to care for and protect Rhode Island’s abused and

neglected children in state custody by reforming the State’s dysfunctional child welfare

system.” Amended Complaint ¶7. They request this Court to certify this case as a class

action described as “all children who are or will be in the legal custody of the Rhode

1 Subsequent to the filing Brianna, Alexis and Clare were dismissed. 3

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Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect.” Amended Complaint ¶ 11. In short, this case asks that the Federal Court take control of significant aspects of Rhode Island’s child protective system and that it second guess past, current and future decisions of the Rhode Island Family Court. It is noteworthy that the Child Advocate to this day has never appeared before the Family Court in any of the ten individual cases and argued that any named plaintiff child was languishing in inappropriate placements, lacked necessary services or was at risk of physical, mental or emotional harm.
Plaintiffs’ allege that the State (1) violated their substantive due process rights (Amended Complaint ¶¶ 219-223 (Count I) and ¶¶ 224-227 (Count II)); (2) violated their rights guaranteed under the First, Ninth and Fourteenth Amendments to the United States Constitution (Amended Complaint ¶¶228-229 (Count III)); violated the Adoption Assistance and Child Welfare Act of 1980 (Amended Complaint ¶¶ 230-231 (Count IV)); deprived them of procedural due process (Amended Complaint ¶¶ 232-235 (Count V)); and breached Rhode Island’s State Plan with the federal government regarding the provision of child welfare, foster care and adoption services (Amended Complaint ¶¶ 236-238 (Count VI)).
Plaintiffs allege that Rhode Island’s actions or inactions violate their substantive due process rights by:
 failing to protect “children in the legal custody of DCYF for foster care services due to reported or substantiated allegations of abuse or neglect” from physical, mental and emotional harm;
 allowing their condition to deteriorate or be harmed physically or psychologically by failing to provide safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning and services directed toward ensuring a permanent placement and
4

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adequate medical, dental, psychiatric, psychological and educational services;  requiring them to remain in state custody longer than necessary;  failing to provide treatment and services in accordance with accepted, reasonable professional judgment;  failing to place them in the least restrictive placement; and  reuniting children with their parents or placing them in placements which pose an imminent risk of harm.
Amended Complaint ¶¶223, 225, 226.
Plaintiffs also allege that the State violated certain provisions of the Adoption
Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe
Families Act of 1997, 42 U.S.C. §§620-29(i), 670-679b (collectively the “Adoption
Assistance Act”) and regulations promulgated there under, 45 C.F.R. 1355-57. Amended
Complaint ¶¶ 230-231. They claim the defendants violated these statutes and regulations
by failing:
 to formulate and implement a timely case plans containing mandated elements;
 to place the child in foster homes or other settings that conform to reasonable professional standards;
 to timely file petitions to terminate parental rights, or having a documented and compelling reason for failing to do so in accordance with statutory standards.
 to provide planning and services for permanent placement of children whose permanency goal is adoption;
 to facilitate the child’s return to the family home or the permanent placement of the child in an alternative permanent home;
 to provide services to protect the child’s safety and health;  to have health and education records reviewed, updated and supplied to
foster parents or other foster care providers with whom the child is placed at the time of placement;  to pay maintenance payments to foster parents in an amount that covers the actual cost of food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family and other expenses.
Plaintiffs allege that the State deprived them of their rights to familial association in
violation of the First, Ninth, and Fourteenth Amendments to the United States
5

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Constitution. Amended Complaint ¶ 229. Plaintiffs also claim that the State deprived them of constitutionally protected property and liberty interests in federal and state entitlements arising from the Adoption Assistance Act and R.I. Gen. Laws §42-724(b)(14), §42-72-10(b), §47-72-5(b)(7), §42-72-10(a) and §42-72-11, §42-72-10(c), §4272-5(24) and §42-72-5.2, §42-72-13(a), §42-72-5(b)(22) and §42-72-15(o) and §42-72.81 et seq. without affording them the procedural due process requires under the Constitution. Amended Complaint ¶ 233-235. Lastly, Plaintiffs claim that they are intended third party beneficiaries of Title IV-B and IV-E of the Social Security Act and the State Plan entered into between the State and the United States Government and that they have been deprived of the services and benefits under this “contract”. Amended Complaint ¶¶237-238.
Defendants deny each and every allegation and submit that the Family Court was informed of and entered orders with respect to placement, visitation and services for each of the ten Plaintiff children. Defendants ask this Honorable to abstain under the Younger and/or Rooker-Feldman doctrines and permit the Rhode Island Family Court to continue to address the needs of David T. and Danny B., the only two remaining Plaintiff children who are the legal custody of DCYF due to an allegation of abuse or neglect. III. THE PLAINTIFF CHILDREN
This Amended Complaint [Document 12] was filed in the name of ten (10) children who are or were in the custody of the Rhode Island Department of Children, Youth and Families due to allegations of abuse or neglect.2 The children, some siblings, came into the DCYF’s care based on their own specific and individual life experiences.
2 It is asserted in the Amended Complaint that pseudonyms have been used for all minor named plaintiffs.
6

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Only two of these children currently have an open case stemming from abuse or neglect allegations with the Rhode Island Family Court and specific hearing dates. Eight (8) of the children have been adopted, with the Family Court approval, since the filing of the original complaint and, as such, their cases at the Family Court alleging abuse or neglect are closed. Each of the remaining two (2) children have a Court Appointed Special Advocate Attorney (CASA) or a Court Appointed Guardian ad Litem representing their interests in the proceedings pending before the Family Court. (See R.I. Gen. Laws §4011-14 - A child’s right to legal representation in child abuse and neglect proceeding, which are brought before the Family Court). “Section 40-11-14 clearly provides for the appointment of a CASA guardian ad litem to represent the child's interests in court proceedings and once that appointment is made, the representation continues until the adoption petition is granted. Section 15-7-6 concerns the issue of consent to the adoption petition.” In re Christina D., 525 A.2d 1306, 1307-1308 (RI 1987).
The Defendants’ set forth in this memorandum of law an abbreviated summary of each child’s history. A detailed history for each child is set forth in Appendix A for the Court’s consideration and incorporated by reference in this memorandum as if fully set forth herein. For Purposes of this Motion to Dismiss, the Defendants will limit the history to the Rhode Island Family Court’s hearings and rulings affecting the children’s lives. The Defendants ask this Court to take judicial notice of the Family Court orders and decrees pertaining to the ten (1) plaintiff children and have been submitted, under seal, as exhibits.
7

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A. Deanna H. On April 10, 2008 Rhode Island Family Court Judge Bedrosian granted the decree of adoption for Deanna H. The Court found that having “been satisfied as to the identity and relationship of the person; that the [person] is of sufficient ability to bring up said child and furnish suitable nurture and education, having reference to the degree and condition of the parent; that it is fit and proper that such adoption should take effect; that the proposed home and child are suited to each other.” As such, Deanna H. is no longer in the legal care, custody or control of the Department of Children, Youth and Families.
B. Danny and Michael i. Michael
On June 4, 2008 the Family Court heard and approved the petition for the adoption of Michael B. The Court found that having “been satisfied as to the identity and relationship of the person; that the [person] is of sufficient ability to bring up said child and furnish suitable nurture and education, having reference to the degree and condition of the parent; that it is fit and proper that such adoption should take effect; that the proposed home and child are suited to each other.” The underlying petition that brought Michael into the jurisdiction of the Family Court was closed. Michael is no longer in the legal care, custody or control of DCYF.
ii. Danny On March 10, 2010 the Family Court convened a permanency hearing for Danny. The DCYF again submitted a written report for the Court’s review and consideration, which detailed Danny’s progress and behavior in the group home. DCYF informed the Court that it had been working closely with Adoption RI for Danny. The Court was
8

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advised that a person met with Adoption RI regarding Danny and DCYF explained to the individual that given Danny’s experience in the last pre-adoptive home, it would proceed slowly and with certain conditions. The Court was also given a letter authored by three (3) members of Danny’s treatment team. After consideration of the foregoing, Judge Bedrosian of the Family Court approved DCYF’s case plan for Danny, found a permanency plan goal of adoption of guardianship was appropriate, and that DCYF had made reasonable efforts to finalize the goals.
On August 4, 2010 the Family Court convened a review for Danny. The DCYF informed the Court that Danny had visits with the person who had been identified through Adoption RI as a prospective family; however on July 30, 2010 the pre-adoptive individual withdrew from the adoption process. DCYF informed the Court that Danny continued to have visits with his maternal grandmother, maternal uncle, his brother Michael and Michael’s adoptive family. The DCYF indicated its intention to continue to work with Adoption RI to identify an appropriate adoptive home for Danny. After consideration, Judge Lipsey (retired) sitting for the Family Court approved DCYF’s case plan for Danny, found a permanency plan goal of adoption of guardianship was appropriate, and that DCYF had made reasonable efforts to finalize the goals. Judge Lipsey noted that the potential adoption did not work out and that DCYF will continue to work with Adoption RI.
C. Caesar On June 22, 2009 the Family Court heard and approved the petition for the adoption of Caesar S. The Court found that having “been satisfied as to the identity and relationship of the person; that the [person] is of sufficient ability to bring up said child
9

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and furnish suitable nurture and education, having reference to the degree and condition of the parent; that it is fit and proper that such adoption should take effect; that the proposed home and child are suited to each other.” The underlying petition that brought Caesar into the jurisdiction of the Family Court was closed. Caesar is no longer in the legal care, custody or control of DCYF.
D. Sam and Tony M. On February 25, 2010 the Family Court heard and approved the petitions for the adoption of Sam and Tony M. The Court found that having “been satisfied as to the identity and relationship of the person; that the [person] is of sufficient ability to bring up said child and furnish suitable nurture and education, having reference to the degree and condition of the parent; that it is fit and proper that such adoption should take effect; that the proposed home and child are suited to each other.” The underlying abuse and neglect petition that brought Sam and Tony into the jurisdiction of the Family Court was closed. Prior to the February 2010, DCYF and the pre-adoptive family agreed to the filing and granting of a dependency petition.3 The purpose of proceeding with a dependency petition, as opposed to a subsidized adoption, was to provide the boys and their adoptive family not only with funds for services but in fact access to the necessary services. After the adoption, Tony resided with his adoptive parents and received counseling in order to maintain him in the home. Sam resided in a group home that could address his sexualized behavior.
3 Children who are brought into the jurisdiction of the Family Court under a dependency petition, adjudged dependent and placed in the legal custody of DCYF as dependent do not fall within Plaintiff’s definition of the proposed class of children they have filed this suit on behalf of. See Plaintiff’s Amended Complaint at Paragraph 11.
10

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E. David T. At his permanency hearing on November 24, 2009, DCYF advised the Family Court that David’s staff time outs during classes had decreased; however he could be extremely argumentative and disruptive when denied something. Academically David had improved grades in all his classes. DCYF reported that David was participating in life skills training, including counting money, how to care for clothing and daily household tasks. David continued his weekly visits with his visiting resource and regular visits, including overnights, with his brother, maternal aunt and her family. DCYF recommended that: (1) it be permitted to move towards the goal of a planned living arrangement; (2) continued visitation with David’s family and the visiting resources; and (3) that David not be placed in a foster care setting at the current time. After consideration of the information presented, the Family Court approved the DCYF’s case plan, found the permanency goal of planned alternative living arrangement appropriate and that DCYF had made reasonable efforts towards the goal. The Court scheduled David’s permanency hearing for November 22, 2010. IV. THE RHODE ISLAND FAMILY COURT It is the policy of the State of Rhode Island “to protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the mandatory reporting of known or suspected child abuse and neglect, investigation of those reports by a social agency, and provision of services, where needed, to the child and family.” R.I. Gen. Laws §40-11-1.
11

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The Rhode Island Family Court and the Department of Children, Youth and Families work to accomplish this goal.
The Family Court is charged with ensuring that “…families whose unity or wellbeing is threatened shall be assisted and protected, and restored, if possible, as secure units of law-abiding members; that each child coming within the jurisdiction of the family court shall receive the care, guidance and control which will conduce to his or her welfare and the best interests of the state; and that when a child is removed from the control of his or her parents, the family court shall secure for him or her care as nearly as possible equivalent to that which his or her parents should have given him or her.” R.I. Gen. Laws § 8-10-2. The Rhode Island Family Court has exclusive original jurisdiction in proceedings for abused or neglected children. R.I. Gen. Laws § 14-1-5.
The individual children are brought before the Family Court by DCYF through the vehicle of child protective petitions in an effort to protect the immediate health and welfare of abused and neglected children and to adequately safeguard them under our state law. “The Family Court shall, upon the filing of an ex parte petition, hereunder, immediately take any action it deems necessary or appropriate for the protection of the child, or children, suspected of being abused or neglected, including the removal of the child, or children, from the custody of the parent or parents, or other person suspected of the abuse or neglect.” R.I. Gen. Laws 40-11-7.1(a). While the child’s case remains open in the Family Court, considers, in addition to other relevant factors:
(1) The appropriateness of the department's plan for service to the child and parent; (2) What services have been offered to strengthen and reunite the family; (3) Where return home of the child is not likely, what efforts have been or
12

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should be made to evaluate or plan for other modes of care; (4) Any further efforts which have been or will be made to promote the best interests of the child; and (5) The child's health and safety shall be the paramount concern. R.I. Gen. Laws §40-11-12.1(d). At the conclusion, the Family Court enters, in accordance with the best interest of the child. R.I. Gen. Laws §40-11-12.1(e). The Family Court plays an integral role in the lives of abused or neglected children in this state. incorporated it by reference in this memorandum as if fully set forth herein. Not only does the Rhode Island Family Court have exclusive original jurisdiction over abused or neglected children, but it also has the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed” under the state’s Uniform Declaratory Judgment Act. R.I. Gen. Laws § 9-30-1. Under this provision, there is no doubt that the Family Court has direct, statutory authority to issue a declaratory ruling and under that authority can review legal issues and enforce the orders. Defendants’ set forth an abbreviated summary of the Family Court’s role in the lives of abused or neglected children. A detailed recitation of the Family Court’s role and authority is set forth in Appendix B for the Court’s consideration and Plaintiffs ask this Court to certify the following class of children: All children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect. Amended Complaint ¶11. The very definition and reference to “legal custody” necessarily invokes the authority, review and approval of the Rhode Island Family Court. The plaintiffs’ allegations regarding DCYF’s inadequacies in areas of placement of children, termination of parental rights, visitation with family, individual plans, etc. are
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not recommendations or decisions unfettered by judicial consideration and approval. On the contrary, each such decision as was done in these cases, is subject to Family Court consideration and orders, with the benefit of an independent review by (at a minimum) a CASA attorney or guardian ad litem who represent only the best interests of the child. Moreover, the Child Advocate by statute and case law is an “appropriate person” to raise concerns to the Family Court regarding children who are alleged to be abused or neglected. R.I. Gen. Laws §42-73-7(8). See also In re: R.J.P., 445 A.2d 286 (R.I.1982). It is beyond argument that the Child Advocate had and continues to have the responsibility to raise the potential or imminent harms and issues that are alleged in this amended Complaint for Sam and Tony M., Caesar S., David T., Briana, Alexis, Clare and Deanna H. and Danny and Michael B. with the Family Court. Yet to date, the Child Advocate has never done so on behalf of any named party to this action.
V. THE OFFICE OF CHILD ADVOCATE R.I. Gen. Laws §42-73-1 creates the Rhode Island Office of the Child Advocate.
The Child Advocate has access to information, “including the right to inspect, copy and/or subpoena records held by the clerk of the family court, law enforcement, agencies, and institutions, public or private, and other agencies, or persons with whom a particular child has been either voluntarily or otherwise placed for care, or has received treatment within or without the state. R.I. Gen. Laws § 42-73-9. The Child Advocate has access to DCYF records concerning: (1) the names of all children in protective services, treatment, or other programs under the jurisdiction of DCYF, and their location if in custody; (2) all written reports of child abuse and neglect; and (3) all current records required to be maintained under the provisions of § 42-72-1 et seq. R.I. Gen. Laws § 42-73-8.
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The Child Advocate has the duty to review orders of the Family Court relating to
juveniles and the power to request reviews as required by the best interests of the child.
R.I. Gen. Laws § 42-73-7(8). She is also considered an appropriate person under Rhode
Island General Laws §§ 14-1-10 and 14-1-11, to bring information to the Family Court to
initiate a preliminary investigation or file a petition alleging a child is dependent, abuse
and/or neglected. In re R. J. P., 445 A.2d 286 (1982). R.I. Gen. Laws § 8-10-2.
The Rhode Island Legislature provided that certain “appropriate persons” are
designated as having the authority to bring information to the Rhode Island Family Court
or to file petitions alleging a child to be dependent abused and/or neglected. R.I. Gen.
Laws § 14-1-10. The statute specifically provides that:
(e)xcept in case of emergency detention, whenever any appropriate person shall give to the court information in his or her possession that a child is within the provisions of this chapter, it shall be the duty of the court to make a preliminary investigation to determine whether the interests of the public or of the child require that further action be taken, and to report its findings together with a statement of the facts to the judge. The inquiry may include a preliminary investigation of the home and environmental situation of the child, his or her previous history, and the circumstances which were the subject of the information. To avoid duplication of effort and to take full advantage of all existing facilities, the report of any public agency, or of any private social agency licensed by the department of children, youth, and families, may be accepted by the court as sufficient evidence for the filing of a petition.
R.I. Gen. Laws § 14-1-10.
In In re R. J. P, the Rhode Island Supreme Court held that although the Child
Advocate is not specifically listed by designation in the statutory definition of an
“appropriate person”, he/she is the head of an agency that meets the requirements set
forth in Rhode Island General Laws section 14-1-3(1)(5). The Statute defines
“appropriate persons” to include “(a)ny duly authorized representative of any public or
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duly licensed private agency or institution established for purposes similar to…” the statutory purpose contained in Rhode Island General Laws section 8-10-2.
The Child Advocate is required by statute “(t)o take all possible action …to secure and ensure the legal, civil and special rights of children…” independently of DCYF. The Rhode Island Supreme Court found that the Child Advocate has the statutory authority and duty to act as an “appropriate person” and bring information and formal legal action on behalf of children before the Rhode Island Family Court. In re R.J.P., 445 A.2d at 287, 288; R.I. Gen. Laws § 42-73-7(6).
Despite her statutory mandates, duties and broad authority to report problems and issues concerning children, the Child Advocate has failed to intervene in the pending Family Court matters for any of the children listed in her Amended Complaint. The Child Advocate has an affirmative statutory duty to intervene in their pending Family Court actions and bring to the Court’s attention those facts and circumstances which supported the allegations and conclusions contained in the Amended Complaint if she believed they merited judicial intervention. The Child Advocate has never informed the Family Court of her claim that there does not exist an appropriate permanency plans for the Plaintiffs. Further the Child Advocate has failed to apprise the Family Court of her alleged concerns regarding the safety of children placed in overcrowded and unlicensed and/or unsuitable foster homes.
On July 9, 2007, DCYF Executive Legal Counsel Kevin Aucoin contacted the Child Advocate specifically instructing her to exercise her statutory authority and intervene in pending Family Court matters concerning three of the then Plaintiffs, Briana, Alexis and Clare H., who she alleged in the Amended Complaint, were in “constant
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jeopardy.” See Exhibit F-1. Attorney Aucoin further requested that in the alternative Ms. Alston provide DCYF with a written report that DCYF would forward to the Family Court for consideration. In correspondence dated July 9, 2007, Ms. Alston responded to Attorney Aucoin’s requests and declined to act upon her statutory duties and mandates by intervening in pending Family Court matters. Ms. Alston declined to report to the Family Court serious allegations about the health and safety of children in state custody and specifically stated that:
…the Child Advocate recognizes the Family Court’s authority to make decisions in individual cases and we will not interfere with the Court’s decision-making process. Based upon the information that the Department of Children, Youth and Families has access to review, the Office of the Child Advocate would assert that it is your executive duty to make appropriate decisions regarding the children’s permanency and safety as well as to fully inform the court and the children’s CASA attorney of the housing situation as it currently exists at the proposed placement; and any danger that may be presented by individuals living in the home of the maternal aunt as noted in the records maintained by the Department. See Exhibit F-2. The Child Advocate is one of the attorneys who filed this lawsuit on behalf of the ten (10) named plaintiff children. Despite making claims that each of these children have suffered abuse and reside in “constant jeopardy” or are languishing while in the care of DCYF, there is no indication or representation that Child Advocate Alston ever questioned any decision by DCYF or the Family Court related to these children or that she appeared at any of the Family Court hearings and made any concerns known to the Family Court justice presiding over any of these cases. Moreover, when asked to do so by DCYF legal counsel, she declined. It appears that Child Advocate Alston has abdicated her statutory authority to intervene in pending Family Court proceedings in these cases and is deferring to DCYF with the review and authority of the Family Court
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to make decisions regarding the placement and permanency needs of these children. VI. STATE CASE LAW The Rhode Island Supreme Court has repeatedly recognized the Family Court’s
authority to issue orders in the best interest of the child. In In re: Carlos F., 849 A.2d 364 (RI 2004) the Family Court ordered that the
children should remain in their current placements rather than be placed with the maternal grandmother. DCYF became involved with children Carlos and Neisha when they were with their mother Luzcelina Feliciano (“Feliciano”) was arrested and charged with possession of heroin with intent to deliver. 849 A.2d at 365. After entering a nolo contendere plea to the charge, Feliciano was sentenced to six (6) months to serve at the Adult Correctional Institution (“ACI”). Id. Carlos and Neisha were placed in the custody of DCYF. Sometime later, Feliciano informed the DCYF caseworker that she had three (3) other children who were being cared for by a friend. Id. Feliciano reclaimed these children upon her release from the ACI. Id. The Family Court ultimately removed the three (3) children from Feliciano’s custody after she refused to cooperate with substance abuse treatment. Id.
Feliciano identified her mother, Mildred Vargas, as a possible caretaker of the five (5) children. Id. Before seriously entertaining the idea of placing the children with the maternal Grandmother – Vargas, a home study relative to the suitability of Vargas and the conditions of her home were necessary through the Interstate Compact on Placement of Children (“ICPC”). Id. Although the DCYF caseworker made the request of the social service agency in Puerto Rico and subsequently followed up on the status of the home study, the Puerto Rican authorities never forwarded DCYF a completed report.
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Id. The Family Court ultimately terminated Feliciano’s parental rights as she failed to
complete a single substance abuse treatment program and repeatedly missed scheduled visits with her children. Id. The Family Court rejected Feliciano’s argument that R.I. Gen. Laws §14-1-2 and the “codified public policy of this state *** to conserve and strengthen the child’s family ties wherever possible” supported the placement of the children with their Grandmother Vargas. Id. at 366. The trial court found that the evidence Feliciano presented in support of placement with Vargas was insufficient to sustain her burden of proof. Id. The Rhode Island Supreme Court ruled that [t]he trial justice acted within his discretion in determining that the best interest of the children would be served by enabling them to remain in their respective placements in the stable and familiar pre-adoptive homes in which they were residing.” Id. at 366-367.
In In re: Christina V., 749 A.2d 1105, 1107 (RI 2000), the Family Court in granting the petition to terminate parental rights expressly found that DCYF had made reasonable efforts to reunite Christina with her parents. The Rhode Island Supreme Court repeatedly acknowledges in this decision the Family Court’s authority to enter orders regarding placement, counseling of parents, etc. that are in the best interest of the child.
In Engelhardt v. Bergeron, 113 R.I. 50, 317 A.2d 877 (1974), the Rhode Island Supreme Court affirmed the Family Court’s award of custody to the children’s aunt and uncle. The children came to live with their aunt and Uncle, Eveline and Paul Engelhardt, after their mother was murdered. 113 R.I. at 52, 317 A.2d at 879. The children’s father was charged with this crime but released on bail pending a trial. Id. Bergeron, the children’s father, objected to the Engelhardts’ petition for custody of the children
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claiming that as their natural father he was entitled to full custody of the children. Id.
After a hearing, the Family Court awarded custody of the children to the aunt and uncle.
Bergeron claimed that the Family Court exceeded its authority in awarding custody of his
children to the Engelhardts. Id.
The Rhode Island Supreme Court rejected Bergeron’s arguments. 113 R.I. at 53,
317 A.2d at 880. The RI Supreme Court stated that the Family Court had authority to
award custody of children determined to be abused or neglected under R.I. Gen. Laws,
§14-1-32 to some appropriate agency. 113 R.I. at 54-55, 317 A.2d at 880-881. The RI
Supreme Court reasoned that “[I]n such cases, the Family Court stands in loco parentis,
charged by the Legislature with the responsibility of placing children who come within
its protection in the custody of a person or agency qualified to provide them with the care
and consideration they should have received from their parents.” I113 R.I. at 55, 317
A.2d at 881.
In Carr v. Prader, 725 A.2d 291 (R.I. 1999) the Rhode Island Supreme Court
ruled that the Family Court and not a probate court was the appropriate judicial body to
decide a petition of guardianship that is opposed by a parent. The Carr Court explained
that:
The Family Court is likewise “ a statutory tribunal possessing only such jurisdiction as was explicitly conferred upon it by the Legislature,” Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976), but is vested with the power to terminate parental rights, G .L.1956 § 15-7-7, and award custody of an abused, delinquent, wayward, neglected, or dependant child to any suitable person or agency. G.L.1956 § 14-1-32 and G.L.1956 §40-11-12. However, the Family Court may only terminate parental rights or custody in limited statutorily-dictated circumstances. See§ 15-7-7 (parental rights may be terminated only upon a showing of, inter alia, willful neglect, abandonment, desertion, or parental unfitness demonstrated by “ cruel or abusive nature” or “ chronic substance abuse” ); see also§ 14-1-32 (court may place delinquent, wayward, neglected, or dependant child in custody
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of appropriate person or agency); § 40-11-12 (child may be placed in custody of the Department of Children, Youth, and Families upon a showing of abuse or neglect).
The laws of Rhode Island express a preference for keeping children with their parents. “ The public policy of this state is *** to strengthen the family.” Section 40-11-1. The Family Court Act seeks to secure for children “ such care, guidance, and control, preferably in his or her own home” and “ [t]o conserve and strengthen the child's family ties wherever possible, removing him [the child] from the custody of his [or her] parents only when his or her welfare *** cannot be adequately safeguarded.” Section 14-1-2.
If the Family Court makes a finding of neglect or abuse, the court can either place the child back in his or her home under Department of Children, Youth, and Families (DCYF) supervision or grant custody to DCYF “ until such time as it finds that the child may be returned to the parents *** under circumstances consistent with the child's safety.” Section 40-11-12(b). The statute allows the court to require the parent to undergo “ counseling, including psychiatric evaluation and/or treatment as a prerequisite to the return of the child to his or her custody.” Id. Within twelve months after the child has been placed in DCYF's care, the court will review, inter alia,“ [t]he appropriateness of the department's plan for service to the child and parent” along with “ [w]hat services have been offered to strengthen and reunite the family,” and only “ [w]here return home *** is not likely” are alternative modes of care considered. Section 40-11-12.1. Unless the court finds egregious behavior on the parent's part, “ reasonable efforts shall be made to preserve and unify families.” Section 40-11-12.2(c).FN1 The Family Court may not grant a petition for guardianship unless: (1) the parents previously having custody have consented in writing, § 40-11-12(b), or (2) had their parental rights terminated, § 15-7-7. Furthermore, minimum due process requires clear and convincing evidence of unfitness before parental rights may be terminated. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). See also§15-7-7; In re Jonathan, 415 A.2d 1036, 1039 (R.I.1980).
Id. at 293-294.
Rhode Island case law is replete with instances demonstrating that the Family
Court and not DCYF or any other named Defendant in this case has the ultimate authority
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to make decisions and enter orders addressing the custody, placement, treatment, etc, of

children found to have been abused or neglected.

i.

Termination of Parental Rights

In re: Carlos F., 849 A.2d 364 (RI 2004)(The Family Court terminated Plaintiff biological

mother’s parental rights and rejected her request to place the children with the maternal

grandmother. The RI Supreme Court ruled that [t]he trial justice acted within his

discretion in determining that the best interest of the children would be served by

enabling them to remain in their respective placements in the stable and familiar pre-

adoptive homes in which they were residing.” Id. at 366-367.); In re: Christina V., 749

A.2d 1105, 1107 (RI 2000)(Family Court in granting the petition to terminate parental

rights expressly found that DCYF had made reasonable efforts to reunite Christina with

her parents. The RI Supreme Court repeatedly acknowledges in this decision the Family

Court’s authority to enter orders regarding placement, counseling of parents, etc. that are

in the best interest of the child.)

ii.

Custody

In Engelhardt v. Bergeron, 113 R.I. 50, 317 A.2d 877 (1974), the Rhode Island

Supreme Court affirmed the Family Court’s award of custody to the children’s aunt and

uncle. The children came to live with their aunt and Uncle, Eveline and Paul Engelhardt,

after their mother was murdered. 113 R.I. at 52, 317 A.2d at 879. The children’s father

was charged with this crime but released on bail pending a trial. Id. Bergeron, the

children’s father, objected to the Engelhardts’ petition for custody of the children

claiming that as their natural father he was entitled to full custody of the children. Id.

After a hearing, the Family Court awarded custody of the children to the aunt and uncle.

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Bergeron claimed that the Family Court exceeded its authority in awarding custody of his
children to the Engelhardts. Id.
The Rhode Island Supreme Court rejected Bergeron’s and stated that the Family
Court had authority to award custody of children determined to be abused or neglected
under R.I. Gen. Laws, §14-1-32 to some appropriate agency. 113 R.I. at 54-55, 317 A.2d
at 880-881. The RI Supreme Court reasoned that “[I]n such cases, the Family Court
stands in loco parentis, charged by the Legislature with the responsibility of placing
children who come within its protection in the custody of a person or agency qualified to
provide them with the care and consideration they should have received from their
parents.” 113 R.I. at 55, 317 A.2d at 881.
In Carr v. Prader, 725 A.2d 291 (R.I. 1999) the Rhode Island Supreme Court
ruled that the Family Court and not a probate court was the appropriate judicial body to
decide a petition of guardianship that is opposed by a parent. The Carr Court explained
that:
The Family Court is likewise “ a statutory tribunal possessing only such jurisdiction as was explicitly conferred upon it by the Legislature,” Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976), but is vested with the power to terminate parental rights, G .L.1956 § 15-7-7, and award custody of an abused, delinquent, wayward, neglected, or dependant child to any suitable person or agency. G.L.1956 § 14-1-32 and G.L.1956 § 40-11-12. However, the Family Court may only terminate parental rights or custody in limited statutorily-dictated circumstances. See§ 15-7-7 (parental rights may be terminated only upon a showing of, inter alia, willful neglect, abandonment, desertion, or parental unfitness demonstrated by “ cruel or abusive nature” or “ chronic substance abuse” ); see also§ 14-1-32 (court may place delinquent, wayward, neglected, or dependant child in custody of appropriate person or agency); § 40-11-12 (child may be placed in custody of the Department of Children, Youth, and Families upon a showing of abuse or neglect).
The laws of Rhode Island express a preference for keeping children with their parents. “ The public policy of this state is *** to strengthen the
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family.” Section 40-11-1. The Family Court Act seeks to secure for children “ such care, guidance, and control, preferably in his or her own home” and “ [t]o conserve and strengthen the child's family ties wherever possible, removing him [the child] from the custody of his [or her] parents only when his or her welfare *** cannot be adequately safeguarded.” Section 14-1-2.
If the Family Court makes a finding of neglect or abuse, the court can either place the child back in his or her home under Department of Children, Youth, and Families (DCYF) supervision or grant custody to DCYF “ until such time as it finds that the child may be returned to the parents *** under circumstances consistent with the child's safety.” Section 40-11-12(b). The statute allows the court to require the parent to undergo “ counseling, including psychiatric evaluation and/or treatment as a prerequisite to the return of the child to his or her custody.” Id. Within twelve months after the child has been placed in DCYF's care, the court will review, inter alia,“ [t]he appropriateness of the department's plan for service to the child and parent” along with “ [w]hat services have been offered to strengthen and reunite the family,” and only “ [w]here return home *** is not likely” are alternative modes of care considered. Section 40-11-12.1. Unless the court finds egregious behavior on the parent's part, “ reasonable efforts shall be made to preserve and unify families.” Section 40-11-12.2(c).FN1 The Family Court may not grant a petition for guardianship unless: (1) the parents previously having custody have consented in writing, § 40-11-12(b), or (2) had their parental rights terminated, § 15-7-7. Furthermore, minimum due process requires clear and convincing evidence of unfitness before parental rights may be terminated. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). See also §15-7-7; In re Jonathan, 415 A.2d 1036, 1039 (R.I.1980).
Id. at 293-294.
Rhode Island case law is replete with instances demonstrating that the Family
Court and not DCYF or any other named Defendant in this case has the ultimate authority
to make decisions and enter orders addressing the custody, placement, treatment, etc, of
children found to have been abused or neglected
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VII. LEGAL STANDARD In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), a Court must construe the complaint liberally, treat all well-pleaded facts as true, and indulge all reasonable inferences in favor of the Plaintiff. See Aversa v. United States, 99 F.3d 520, 522 (1St Cir. 1996). “A plaintiff, however, may not rest merely on ‘unsupported conclusions or interpretations of law.’ Washington Legal Found. V. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993).’[S]ubjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts’ will not defeat a motion to dismiss. Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)(internal quotations omitted).” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). “’…[I]n ruling on a Rule 12(b)(1) motion, a court is not limited to the face of the pleadings, A court may consider any evidence it deems necessary to settle the jurisdictional question.’” Morey v. State of Rhode Island, 359 F.Supp.2d 71, 74-75 (D.R.I. 2005) (citing Palazzolo v. Ruggiano, 993 F. Supp. 45, 46 (D.R.I.1998). In fact, ‘[t]he Court can look beyond pleadings – to affidavits and depositions – in order to determine jurisdiction.” White v. Comm’r of Internal Revenue, 899 F.Supp. 767, 771 (D.Mass.1995). In considering this motion to dismiss under Rules 12(b)(1) and 12(b)(6), the Court may take judicial notice of the prior Family Court orders and decrees. Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.1990) (“ It is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.”) Additionally, “courts have made a narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff’s claim; or for
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documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). It is the Plaintiff’s burden to prove the existence of subject matter
jurisdiction. Murphy v. United States, 45 F.3d at 522.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the
allegations in the light most favorable to the plaintiff. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-56
(1957). The Court must accept all well-pled factual averments as true, and draw all
reasonable inferences there from in Plaintiff’s favor. Gooley, 851 F.2d at 514. However,
The court, however, is not required to credit “ bald assertions, unsupportable conclusions, and opprobrious epithets.” Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)(internal quotation marks omitted) (quoting Chongris v. Bd. Of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). Rule 12(b)(6) is forgiving, but it “ is not entirely a toothless tiger.” Campagna v. Massachusetts Dep’t of Envtl. Prot., 334 F.3d 150, 155 (1st Cir. 2003) (quoting Dartmouth Review). A plaintiff must allege facts in support of “ each material element necessary to sustain recovery under some actionable legal theory.” Dartmouth Review v. Dartmouth Coll., 889 F.2d at 16 (quoting Gooley v. Mobile Oil Corp., 851 F.2d 513, 515 (1st Cir. 1998)).
Morey v. State of Rhode Island, 359 F.Supp.2d at 75.
VII. ARGUMENT
A. THE COURT LACKS JURISDICTION OVER FIVE PLAINTIFF CHILDREN AS THEY ARE NO LONGER IN THE LEGAL CUSTODY OF THE DCYF UNDER ALLEGATIONS OF ABUSE AND/OR NEGLECT.
The Court should dismiss the claims of Plaintiffs Sam and Tony M., Deanna H.
Caesar S., and Michael B as these children do not satisfy the “case or controversy”
threshold requirement of a federal court suit. These five Plaintiff children have been
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adopted and are no longer in the legal custody of DCYF due to a report or suspicion of
abuse or neglect.4
Article III of the Constitution restricts the jurisdiction of federal courts to the
resolution of actual cases and controversies. Overseas Military Sales Corporation, Ltd. v.
Giralt–Armada, 503 F.3d 12 (1st Cir. 2007). “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).
See also Operation Clean Government v. The Rhode Island Ethics Commission, 315
F.Supp2d 187, 193 (D.R.I. 2004). “The case or controversy requirement ensures that
courts do not render advisory opinions. Put another way, ‘those words limit the business
of federal courts to questions presented in an adversary context.’” Giralt–Armada, 503
F.3d at 17 (citing, Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947
(1968)).
It is not dispositve that the plaintiff’s claim may have been “live” at the time the
complaint was filed. On the contrary, the First Circuit has held that:
Article III considerations require that an actual case or controversy “must be extant at all stages of review, not merely at the time the complaint is filed.” Steffel, 415 U.S. at 459 n.10, 94 S.Ct. 1209. When, as now, a plaintiff has initial standing to bring a particular claim, a federal court is duty bound to dismiss the claim as moot if subsequent events unfold in a manner that undermines any one of the three pillars on which constitutional standing rests: injury in fact, causation, and redressability. See Goodwin v. C.N.J., Inc., 436 F.3d 44, 46 (1st Cir.2006) (“A case
4 Before Judge Lagueux’s ruling on Defendant’s original Motion to Dismiss, Brianna, Alexis and Clare H.’s claims were dismissed as the Family Court approved their adoptions on September 24, 2007. The Family Court approved Deanna H’s adoption on April 10, 2008. The Family Court approved Michael B’s adoption on June 4, 2008. The Family Court approved Caesar’s adoption on June 22, 2009. The Family Court approved Sam and Tony M’s adoption on February 25, 2010.
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becomes moot if, at some time after the institution of the action, the parties no longer have a legally cognizable stake in the outcome.”); Mangual, 371 F.3d at 60. (“If events have transpired to render a court opinion merely advisory, Article III considerations require dismissal of the case.”). Ramirez v. Sanchez Ramois, 438 F.3d 92, 100 (1st Cir. 2006). To demonstrate mootness, the Defendants “must show that, after the case's commencement, intervening events have blotted out the alleged injury and established that the conduct complained of cannot reasonably be expected to recur. If it is sufficiently plain that intervening events have wiped the slate clean, the case has become moot.” Ramirez, 438 F.3d at 100. The adoptions of Deanna, Michael, Caesar, Sam and Tony have “blotted out the complaints” regarding the alleged deficiencies of foster care services and placement alleged in Plaintiff’s Amended Complaint and any viable interest in prospective injunctive relief. The Rhode Island Family Court approved the adoptions of these five children without objection from the Child Advocate. The underlying petitions, alleging abuse and neglect, that brought these five children under the jurisdiction of the Family Court and into DCYF’s legal custody have all been closed. No live case or controversy exists between Deanna, Michael, Caesar, Sam and Tony and the State Defendants. The Amended Complaint only seeks prospective injunctive relief. Thus, Deanna, Michael, Caesar, Sam and Tony do not have a legally cognizable interest in the outcome of this lawsuit and, therefore, their claims are moot. See 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). The only way to avoid dismissal on mootness is for Plaintiffs to demonstrate that the claims of Deanna, Michael, Caesar, Sam and Tony are capable of repetition, yet evades review. Id. To avoid dismissal for these five plaintiff children, they must
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demonstrate that: “’(1) the challenged action [is] in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation
that the same complaining party [will] be subjected to the same action again.” Id.
(quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350
(1975).) It is the plaintiffs’ burden of “establishing both that the issue is capable of
repetition and that, absent relaxation of the classic mootness rule, it will evade review.”
Id.
There is nothing within the facts alleged by Plaintiff to satisfy either prong. It is
undisputed that all five children were in DCYF’s legal custody upon an allegation of
abuse or neglect for over a year before their adoption. Additionally, there is no
reasonable expectation that these five children who have been adopted will be the same
complaining party subject to the same action.”5
Moreover, in its decision, Sam M. 329 F.3d 77, 81 n.1, the First Circuit made a
finding that Deanna’s claim was moot. Specifically, the First Circuit stated that:
5 Such claim cannot be extended to Sam and Tony, even though they have been adjudged by the Family Court as “dependent”5 in order to receive the necessary funding and access to services.5 In 2010, the Family Court with the agreement of Sam and Tony’s adoptive parents found each to be a “dependant child” pursuant to R.I. Gen. Laws §14-1-1, et seq. R.I. Gen. Laws § 14-1-3(6) defines a “dependent” child to mean: "Dependent" means any child who requires the protection and assistance of the court when his or her physical or mental health or welfare is harmed or threatened with harm due to the inability of the parent or guardian, through no fault of the parent or guardian, to provide the child with a minimum degree of care or proper supervision because of: (i) The death or illness of a parent; or (ii) The special medical, educational, or social service needs of the child which the parent is unable to provide. The terms “dependent” and “neglect or abuse” are statutorily distinct and are not legally interchangeable. It is significant to note that Plaintiff’s amended complaint and proposed class is defined as “all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect.” Amended Complain [Document 12] at ¶11.
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The complaint initially named ten children as Plaintiffs. However, three of the children were subsequently adopted and therefore, they are not currently under DCYF custody. The district court concluded that the children's adoption rendered their claims moot and Plaintiffs have not challenged this conclusion on appeal. After the district court rendered its opinion, Plaintiff Deanna H. was adopted and thus her claims are also moot. The remaining named Plaintiffs, who are identified by pseudonyms to protect their identities, are Sam and Tony M, David T., Danny and Michael B., and Caesar S.
Based on identical grounds, i.e. adoption, the claims of Caesar, Michael, Sam and Tony
are also moot. Plaintiffs claims brought on behalf of Deanna, Michael, Caesar, Sam and
Tony must be dismissed based on mootness.
B. THE FEDERAL COURT SHOULD ABSTAIN FROM RENDERING A DECISION THAT WOULD INVADE THE PROVINCE OF THE RHODE ISLAND STATE COURTS OR ITS PAST AND FUTURE DECISIONS.
i. ABSTENTION BASED ON THE YOUNGER DOCTRINE
Plaintiffs allege that Defendants denied them federal statutory rights and violated
their First, Ninth and Fourteenth Amendment rights and they seek undefined injunctive
and declaratory relief. Without addressing the merits of the specific claims of each
Plaintiff, the Defendants submit that principles of comity support this Court’s abstention
from interfering with the Plaintiffs’ cases pending before the Rhode Island Family Court.6
The First Circuit has repeatedly held that under the legal principles defined in
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.ed.2d 669 (1971) “a federal court
must abstain from hearing a case if doing so would ‘needlessly inject’ the federal court
into ongoing state proceedings.” Coggeshall v. Massachusetts Board of Registration of
6 At the time the Complaint was filed all ten (10) children had open and ongoing petitions stemming from allegations of abuse or neglect pending before the R.I. Family Court.
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Psychologists, 604 F.3d 658, 664 (1st Cir. 2010). Among the reasons counseling against federal court interference with ongoing state court proceedings is “the notion of ‘comity, that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Younger v. Harris, 401 U.S. at 44. This principle reflects a “sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Id. at 44. Recognizing that the facts of Younger dealt with federal interference into an ongoing state criminal prosecution, it is important to note that federal courts have applied the Younger principles to ongoing noncriminal state proceedings that are judicial in nature. Coggeshall, 604 F.2d at 664. See also Rossi v. Gemma. 489 F.3d 26 (1st Cir. 2007); Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27 (1st Cir. 2004).
The First Circuit and this Court have repeatedly applied a three (3) prong test to determine whether abstention is appropriate under the Younger framework. The “tripartite model”, premised on the United States Supreme Court’s decision in Middlesex County Ethics Comm. V. Garden State Bar Ass’n., 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), requires that “’(1) the [ongoing state] proceedings are judicial (as oppose to legislative) in nature; (2) they implicate important state interests; and (3) they provide an adequate opportunity to raise federal constitutional challenges.’” Coggeshall, 604 F.2d at 664 (citing Bettencourt v. Bd. of Regist. in Med., 904 F.2d at 772, 777 (1st
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Cir. 1990)). The three prongs must be “assessed as of the date when the federal complaint is filed.” Id. Where a case meets the Younger test, a district court has no discretion to provide injunctive relief and must abstain.7 See Colorado River Water Conservation District v. United States, 424 U.S. 800, 816 fn22, 96 S.Ct. 1236,1 246 fn.22, 47 L.Ed.2d 483 (1976). See also J.B. ex rel. Valdez, 186 F.3d 1280, 1291 (10th Cir.1999)(“Younger abstention is not discretionary once the above conditions are met absent extraordinary circumstances that render a state court unable to give state litigants a full and fair hearing on their federal claims.”)
In this case the three prong test has been met: (1) there are or were ongoing proceedings for each of the ten children before the Rhode Island Family Court when the complaint was filed; (2) an important state interest is implicated; and (3) there is/was an adequate opportunity for the plaintiffs to advance their federal constitutional claims. Having satisfied the Younger criteria, the Defendants submit that this Court must decline exercising jurisdiction and dismiss this suit.
a. Threshold Consideration As a threshold matter, the issue of “interference” is satisfied. Granting plaintiff’s broadly phrased request for injunctive relief would: (1) necessitate a judicial finding by this Court that orders and decisions made or approved by the R.I. Family Court as to placement, services, permanency, etc. for the plaintiff children violated their
7 A narrow exception to Younger abstention exists “if the plaintiff demonstrates ‘bad faith, harassment, or any other unusual circumstance in the ongoing state proceeding.’” Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 639 (1st Cir. 1996). These exceptions are “narrowly construed.” Malachowski v. City of Keene, 787 F.2d 704, 709 (1st Cir. 1986). Plaintiffs have never claimed that the Family Court was a forum where it suffered bad faith, harassment, or any other unusual circumstance and, therefore, the exception does not apply in this case.
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constitutional rights; (2) enjoin the Family Court from performing the duties they are charged with performing under Rhode Island law with respect to the protection of abused and/or neglected children; and (3) require this Court to oversee the Family Court in the performance of it’s statutory duty to issue orders for the best interest of abused and/or neglected children. See Fernandez v. Trias Monge, 586 F.2d 848, 851 (1st Cir. 1978)(“a federal finding of unconstitutionality necessarily undermines a state prosecution”).
Previously Plaintiffs asked the District Court to decline a threshold finding of “interference” because (1) they have filed this suit against the state’s executive branch and (2) the relief sought is from state executive action and does not implicate the Family Court. Plaintiffs also argued that the Family Court actions for these children are not “enforcement actions” and, therefore, are not appropriate state proceedings to abstain from under Younger. Plaintiffs’ portrayal that the relief would only run against the state agency officials administering the child welfare system and would not effect the state family court is akin to a Trojan horse; a mere strategic characterization in order to avoid Younger abstention. See Coggeshall, 604 F.2d at 663, n5 (The First Circuit stated that Plaintiff’s monetary claims against the individual board members monetary claims against the individual board members was a Trojan horse to try to avoid Younger abstention given the defense and application of judicial immunity.) An order for injunctive relief from this Court will first require that it make a finding that the past Family Court orders for these named children violated their constitutional rights and then
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issue injunctive relief which will interfere with future decisions of the Family Court on placement and services for abused or neglected children8.
1.Interference with the State Family Court
Plaintiffs previously argued to the District Court that Younger abstention was not
appropriate because this lawsuit only asked the Court to “review executive actions, not to
review any Family Court proceeding” and that they do not ask this Court to overturn any
Family Court decisions, but instead challenge the decisions made by the executive
agency regarding the children’s treatment, placement, and services while in the state’s
custody – decisions made outside the context of the state court proceedings, either the
enforcement actions or the periodic reviews.” Despite Plaintiffs’ desire to segregate the
executive and judiciary’s actions so that this lawsuit may proceed, the Rhode Island
Family Court’s active role in the placement and case plans of the named Plaintiffs cannot be denied.9 DCYF’s actions cannot be viewed in a vacuum as they were reviewed and
approved by the Rhode Island Family Court.
8 Plaintiffs allege in the Amended Complaint that their constitutional rights have been violated due to inappropriate placements, lack of services, prolonged attempts at reunification, failure to timely file to terminate parental rights, etc. and that this Court should issue prospective injunctive relief. However, in order to make such a ruling and find that Plaintiff Children have been harmed by inappropriate placements or have languished in foster care due to prolonged reunification efforts or failure to terminate parental rights, would require this Court to review, reverse and dictate to the Rhode Island Family Court how it should rule on the specific cases of abused or neglected children under its original jurisdiction. Asking this Federal Court to oversee and manage the justices of the Rhode Island Family Court and their rulings or orders on specific cases, treads on the comity that Younger was so very concerned about. Contrary to Plaintiffs’ claims, this case does implicate issues of comity between the State and Federal Government.
9 Even in the “Child Advocate Handbook”, it is noted that “[o]nce a report of child maltreatment leads to the filing of a juvenile petition in the Family Court, the business of protecting children is shared by DCYF, the judiciary and the professionals appointed to
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When determining what constitutes “interference” under Younger, the Court must
look to determine whether the relief sought would either directly or indirectly interfere in
a state court proceeding. The United States Supreme Court elaborated on “direct” and
“indirect” interference in O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct., 669, 38 L.Ed.2d
674 (1974). In O’Shea, the respondents alleged “that [a state prosecutor and his
investigator, the police commissioner, a magistrate and judge of court] have intentionally
engaged in, and are continuing to engage in, various patterns and practices of conduct in
the administration of the criminal justice system in Alexander County that deprive” them
of their constitutional rights. 414 U.S. at 489, 94 S.Ct. 673. The respondents sought an
injunction aimed at preventing these practices. In finding that the federal court should
have abstained under Younger, the United States Supreme Court explained:
A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable. In concluding that injunctive relief would be available in this case because it would not interfere with prosecutions to be commenced under challenged statutes, the Court of Appeals misconceived the underlying basis for withholding federal equitable relief when the normal course of criminal proceedings in the state courts would otherwise be disrupted. The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain ‘ (t)he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’ An injunction of the type contemplated by respondents and the Court of Appeals would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents' broadly defined class. The Court of Appeals disclaimed any
represent the various parties.” http://www.childadvocate.ri.gov/HandbooksandBrochures/ChildAdvocateHandbook.php
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intention of requiring the District Court to sit in constant day-to-day supervision of these judicial officers, but the ‘periodic reporting’ system it thought might be warranted would constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity 414 U.S. at 500-501, 94 S.Ct. 678-979 (citations and footnotes omitted). Emphasis Added. In Rhode Island, upon the filing of an ex parte petition, the Family Court is statutorily authorized to “”immediately take any action it deems necessary or appropriate for the protection of the child, or children, suspected of being abused or neglected, including the removal of the child, or children, from the custody of the parent or parents, or other person suspected of the abuse of neglect.” R.I. Gen. Laws §40-11-7.1(a). Emphasis added. At the initial hearing, the Family Court is authorized to “make any interim orders in its discretion respecting the rights of the child.” R.I. Gen. Laws §4011-7.1(b). Emphasis added. If the Family Court determines that the child has been abused, it enters a formal decree in which it sets forth its determination whether the child can safely be returned to their home, award the care, custody, and control of the child to the department upon such terms as the court shall determine, or place the custody of the child in the department until such time as it finds that the child may be returned to the parents or other person previously having custody or care of the child under circumstances consistent with the child's safety. R.I. Gen. Laws §40-11-12. Emphasis added. If the Court does not return the child to his/her parents’ custody, “the court shall direct … [DCYF] to submit within thirty (30) days a written plan for care and treatment… .The court shall thereupon approve or modify such plan, or shall remand the plan to …[DCYF] for further development or resubmission.” Rhode Island Family Court
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Rules of Juvenile Proceedings Rule 17. Emphasis added. Upon approval of this individualized plan, the Court shall direct DCYF to “review such plan and report thereon to the court not later than six (6) months thereafter.” Id. Emphasis added.
The service plan that is submitted to the Family Court for its review and consideration must include a statement of the needs of each child as well as the “proposed treatment and placement” for each child. R.I. Gen. Laws §42-72-10(a). The Department must ensure that the service plan is subject to review every six months for purposes of determining, “…whether the service plan is in the best interests of the child and is also cost effective.” R.I. Gen. Laws §42-72-10 (a). Moreover, plans that refer to a goal of “adoption “or placement in another permanent home, must include, “…documentation of the steps the department is taking to find an adoptive family or other permanent placement, to place the child in such a family or placement, and to finalize permanency.” R.I. Gen. Laws §42-72-10 (c).
At each regularly scheduled review and/or permanency hearing of any child found to be neglected and/or abused, DCYF is required to present a written reunification or permanency plan to the Family Court. R.I. Gen. Laws §40-11-12.2. The DCYF service plan shall include a statement as to, “…whether, and if applicable when, the child will be returned to the parent, placed for adoption, referred for legal guardianship, placed with a fit and willing relative, or (in cases whether the department can show the court compelling reasons why the foregoing placements or referrals would not be in the child's best interests) placed in another planned permanent living arrangement.” R.I. Gen. Laws §40-11-12.2 (a).
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The term “review” should not be misconstrued. The Family Court does not merely look at the service plan and sit passively by if it finds any terms or conditions not in the abused or neglected child’s best interest. On the contrary, as a matter of law, the Family Court is vested with the exclusive authority to pass judgment on the plan. R.I. Gen. Laws §40-11-12.2 (a) requires that “the plan may be approved and/or modified by a justice of the family court and incorporated into the orders of the court, at the discretion of the court.” Emphasis added. Accordingly, if the Family Court accepts the plan, the Court is determining that the child’s placement, services and reunification or permanency plan is appropriate and in the best interest of the child. If the Family Court orders the plan to be modified it is finding that some aspect of placement, services or permanency is not appropriate or is deficient and compels DCYF to alter the services or placement until accepted by the Court. By the plain face of the statute, the Family Court is reviewing decisions that DCYF may make as to the placement and services to an abused or neglected child in its custody and either accepting those arrangements as being in the best interest of the child or requiring DCYF to make alternative placements or services that are then subject to approval by the Court. Therefore, although the Plaintiffs identify court orders where the wording indicates that a child is placed in the custody of DCYF with discretion to placement, ultimately the Family Court exercises its authority to review the child protective petitions and has the authority to accept, modify or reject the DCYF plan for services; including the Department’s recommendations relating to placement and permanency planning.
The Plaintiffs’ lawsuit asks this Court to find that DCYF placed the Plaintiff children in unstable and inappropriate placements, failed to establish a permanency plan,
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failed to timely terminate parental rights, unnecessarily placed them in institutions, etc.
The Plaintiffs contend that they are not asking this Court to “review any Family Court
proceeding” as the Rhode Island Family Court lacks authority regarding such issues as
placement. The facts of the Plaintiff Children’s cases contradict these statements.
It is clear from the Family Court orders pertaining to the Plaintiff Children that
the Rhode Island Family Court did evaluate and approve of DCYF’s placements,
services, etc. specifically or by expressly accepting the case plans. Moreover, in some
instances the Family Court ordered that the children be placed with a specifically named
individual or at an institution.10 Since Plaintiffs’ Amended Complaint alleges that DCYF
10 By way of examples: Exhibit A-16 & 17 – The Family Court approved DCYF’s case plan for Brianna H. and approved a goal of reunification with her parents. The Family Court ordered that Brianna’s father may supervise the visits with her mother; Exhibit A23. The Family Court ordered that Brianna is ordered into the temporary custody of DCYF and expressly ordered placement with a specifically named relative. The Family Court further ordered no unsupervised visits; Exhibit A-28. The Family Court entered an order that Brianna, Clare and Alexis are “committed to the care custody and control of DCYF” and ordered placement of the three children with a specifically named relative and her spouse. The Court also entered a specific order regarding the time of visitation; Exhibits D- 26 and D-60 – In July of 2006, the Family Court entered an order in the case of Sam and Tony M. which approved of the DCYF case plan and specifically found that DCYF was making reasonable efforts toward achieving a permanency plan goal of adoption; Exhibits D-27 and D-61- In January of 2007, the Family Court once again approved of the DCYF case plan as it relates to Sam and Tony M. and found that DCYF was making reasonable efforts toward achieving a permanency plan goal of adoption; Exhibit C -13 In April 14, 2003, the Family Court convened a permanency hearing on behalf of the child Caesar S. At the conclusion of the hearing, the Family Court approved of the Department’s case plan goal and the trial judge noted that Caesar would continue to reside in relative foster care; Exhibit C-22 and C-23: At the conclusion of a permanency hearing conducted on May 10, 2004 relating to the child, Caesar S., the Family Court entered an order approving DCYF’s case plan. In addition, the Court concluded that the case plan’s goal of reunification was appropriate and that DCYF had made reasonable efforts to facilitate reunification of Caesar with his parents. Additionally, the Family Court found that DCYF had documented a compelling reason to continue efforts to work toward a case plan goal of reunification. Finally, it ordered that DCYF was required to continue to make efforts to reunify Caesar with his mother until August of 2004; Exhibit C-44 In November of 2006, at the conclusion of a permanency
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violated their constitutional rights by these very actions and seeks prospective relief on
these same issues, any remedy would necessarily interfere with the Rhode Island Family
Court and its ongoing proceedings. The Defendants submit that such action would
constitute an interference that Younger seeks to avoid. Thus, applying the reasoning in
O’Shea to this lawsuit, any remedy addressing Plaintiffs’ complaints would require that
this Court continuously supervise and oversee the Family Court’s decisions on placement
and services to Rhode Island children who are suspected of being neglected or abused.
2. NOPSI and Rio Grande
Plaintiffs erroneously claim that the First Circuit’s decision in Rio Grande Community Health Center v. Rullan, 397 F3d 56 (1st Cir. 2005) and the United States
Supreme Court’s decision in New Orleans Public Service, Inc. v. Council of the City of
New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) preclude the
hearing, the Family Court approved the Department’s case plan as well as the permanency goal of adoption for the child, Caesar S. In addition, the Family Court made a finding that DCYF had made reasonable efforts to finalize a permanency goal of adoption or guardianship; Exhibit E-19 In the case of David T., the Family Court specifically authorized placement of David T. with a relative who resided out of state in February of 1999; Exhibit E-58 In December of 2000, the Family Court found that placement of David T. in an out of state program was necessary; Exhibits E-38 and E-39In November of 2005, the Family Court conducted a permanency hearing on behalf of the child, David T. At the conclusion of the hearing, the Family Court entered an order in which it approved of the DCYF case plan and the goal of “long term living arrangement with other.” In addition, the Family Court made a finding that DCYF had documented a reason why return home, adoption, guardianship or placement with a relative was not an appropriate permanency plan goal for David and that DCYF had made reasonable efforts to finalize a permanency plan goal of another planned alternative living arrangement. The Family Court also directed that DCYF continue to make placement referrals on behalf of David T. through the DCYF Care Management Team and the case was continued to January 9, 2006 for review.
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application of Younger to their Amended Complaint. Their basis for such an assertion that Younger does not apply to this action is their claim that they seek relief from state executive action. Rio Grande and NOPSI are factually distinguishable from this case and do not defeat abstention.
In NOPSI, a utility company requested permission from the New Orleans City Council (“Council”), the local government agency responsible with ratemaking authority, to institute a rate increase. 491 U.S. at 355, 109 S.Ct. 2511. The Council denied NOPSI’s request. Id. NOPSI filed an action for injunctive and declaratory relief in the Federal District Court. Id. The District Court dismissed NOPSI’s lawsuit under the Johnson Act and indicated it would also abstain under Burford Doctrine. On appeal, the Fifth Circuit initially reversed the District Court’s decision on both grounds; however, on its own motion, it vacated this decision and held that abstention was appropriate under both Burford and Younger. 491 U.S. at 355-56, 109 S.Ct. 2511. NOPSI filed two subsequent suits in the federal district court in response to two subsequent decisions by the Council. 491 U.S. at 356, 109 S.Ct. 2512. Anticipating that the District Court might again abstain, NOPSI filed a petition for review of the Council’s order in the Civil District Court for the Parish of Orleans, Louisiana. 491 U.S. at 357, 109 S.Ct. 2512. As NOPSI predicted, the District Court abstained. Id.
The United States Supreme Court ruled that Younger abstention was not appropriate. It explained that “[w]hile we have expanded Younger beyond criminal proceedings, and even beyond proceedings in courts, we have never extended it to proceedings that are not ‘judicial in nature.’” 491 U.S. at 369-70, 109 S.Ct. 2519. The Court “has never been suggested that Younger requires abstention in deference to a state
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judicial proceedings reviewing legislative or executive action.” 491 U.S. at 368, 109 S.Ct. 2518. The Supreme Court held that NOPSI’s challenge was to a completely legislative action and did not represent an “interference with ongoing judicial proceedings against which Younger was directed.” 491 U.S. at 372, 109 S.Ct. 2520.
The other case relied upon by Plaintiffs in their opposition to Younger abstention is the First Circuit’s decision in Rio Grande. In Rio Grande, Plaintiffs, federally qualified health centers brought suit against Puerto Rico’s Secretary of Health under 42 USC §1983 seeking an injunction ordering that wraparound payment monies be paid in a timely manner. 397 F.3d 56, 60. Prior to filing their federal lawsuit, the health centers sued the Secretary in state court seeking damages for past overdue payments and other relief. Id.
The First Circuit held that the ongoing state proceeding involved in Rio Grande was not the proper type of proceeding to require adherence to Younger principles.” Id. at 69. The First Circuit acknowledged that Younger occurred within the context of a criminal state proceeding and, it subsequently has been extended to “some quasi-criminal (or at least ‘coercive’) state civil proceedings - and even administrative proceedings brought by the state as enforcement actions against an individual.” As an example of such proceedings, the First Circuit cited the United States Supreme Court’s decision in Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) where “Younger abstention [was] appropriate in context of state child removal proceedings due to allegations of child abuse.” Id. Younger has also been extended to those “situations uniquely in furtherance of the fundamental workings of a state’s judicial system.” Id.
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The First Circuit stated that it was “unclear exactly how far this second rationale extends, although it is related to the coercion/enforcement rationale.” Id.
The Rio Grande Court found that neither situation was present in that case and, thus declined to abstain under Younger. Id. at 70. The First Circuit found that the state court action for payment of wraparound benefits by Puerto Rico’s Secretary of Health was more appropriately characterized as “judicial review of executive action,” similar to New Orleans Public Serv., Inc. (NOPSI) v. Council of City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). A second reason why the First Circuit found Younger abstention inappropriate was because the federal court suit and an injunction would not stop “the state court from proceeding independently against the state Medicaid agency as well, nor is it inconsistent with any of the Commonwealth court orders.” Id. at 71.
Plaintiffs’ erroneously claim that the instant lawsuit is similar to NOPSI and Rio Grande and that it is only aimed at and would only effect the executive branch of state government. In order to make a finding that Plaintiff Children’s constitutional rights have been violated, the Plaintiffs are not merely asking this Court to review and find error with decisions made by the DCYF on child welfare issues. The Rhode Island Family Court has issued orders addressing placement and services (areas where Plaintiffs alleged the named children have been harmed) as to Plaintiff Children and will continue to do so in the future. By its very essence, the Plaintiffs lawsuit implicates and challenges Family Court orders. Any remedy that this Court may fashion to rectify placement and service issues will directly and/or indirectly interfere with pending Family Court proceedings.
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Accordingly, NOPSI and Rio Grande are inapposite as to a Younger analysis of the
specific facts of this case and Rhode Island’s Family Court.
3. Younger Applies to Child Welfare Cases
Both the United States Supreme Court and the First Circuit have likened state
court actions surrounding allegations of abuse and neglect to “enforcement proceedings”
and that ongoing family/juvenile court proceedings trigger Younger abstention.
The United States Supreme Court in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371,
60 L.Ed.2d 994 (1979) applied Younger abstention in the context of a state court child
abuse case. The Moore Court explained that:
The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samuels v. Mackell, 401 U.S. 592, 95 S.Ct. 1200, 43 L Ed.ed 688 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the basic concern – that threat to our federal system posed by displacement of state courts by those of the National Government – is also fully applicable to civil proceedings in which important state interests are involved. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in a child-abuse context is, like the public nuisance statute involved in Huffman, “in aid of and closely related to criminal statutes.” Id. at 604, 95 S.Ct., at 1208. The existence of these conditions, or the presence of such other vital concerns as the enforcement of contempt proceedings, Juidice v. Vail, 430 U.S. 327. 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), or the vindication of “important state policies such as safeguarding the integrity of [public assistance] programs,” Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977), determines the applicability of Younger-Huffman principles as a bar to the institution of a later federal action.
442 U.S. 415, 423, 99 S.Ct. 2371, 2377. Emphasis Added.
Although there are some factual distinctions in so much as the federal lawsuits were
brought by the parents, the First Circuit has had the brief opportunity to apply Younger in
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the aspect of a child abuse case. In McLeod v. Maine Department of Human Services,
1999 WL 33117123 (D.Me. Nov. 2, 1999)(not reported in F.Supp.2d), the United States
District Court for the District of Maine, abstained under Younger and dismissed a
complaint involving child welfare. As background to its decision, the District Court
related:
McLeod alleges that her three minor children were removed from her custody and placed in the custody of DHS in August 1997. Complaint (Docket No.2) at [1]. DHS purportedly failed to provide certain services mandated by state law, among them an effort to reunite McLeod and her children. Id. At some unspecified date DHS sought a “cease reunification” order, which was granted by the Main District Court. Id. at [2]. The Law Court affirmed this judgment. Id. DHS contends, and McLeod acknowledges, that she is in the midst of an ongoing state-court child protection proceeding in which the next step in the continuum is termination of parental rights. Defendant’s Motion at 1-2; Plaintiff’s Objection to Defendant’s Motion to Dismiss (“Opposition”) (Docket No. 4) at [2](“In this case, the pending action in state courts is to terminate Ms. McLeod’s parental rights of her three children.”). On the bases of the alleged violations of her rights pursuant to the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”), and the due process clause of the Fourteenth Amendment to the United State Constitution, McLeod asks this court to issue an injunction compelling DHS to provide reunification services and to award damages (including punitive damages), costs and fees. See generally Complaint.
1999 WL 33117123 at page 1. In making its determination whether to abstain based on
Younger, the District Court explained:
McLeod concedes that she is in the midst of ongoing state child-custody proceedings. She does not argue that those proceedings antedate the filing of the instant complaint. See generally Opposition.
The question of child custody implicates an important, if not paramount, state interest. See, e.g., Moore v. Sims, 442 U.S. 415, 423 (1979) (recognizing applicability of Younger doctrine to cases concerning state proceedings for temporary removal of child in child-abuse context); Malachowski v. City of Keene, 787 F.2d 704, 708 (1st Cir.1986) (noting that Supreme Court had expanded applicability of Younger doctrine to many categories of civil proceedings, including state child-custody
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actions).
Finally, Maine courts afford an opportunity to challenge a state-initiated child-welfare or child-custody proceeding on federal statutory or constitutional grounds. See, e.g., In re Christmas C., 721 A.2d 629, 631-32 (Me.1998) (adjudicating challenge to cease-reunification order on federal constitutional due-process grounds); In re Angel B., 659 A.2d 277, 279 (Me.1995) (adjudicating challenge to termination of parental rights on ADA grounds). See also Moore, 442 U.S. at 425 (“The pertinent issue is whether appellees' constitutional claims could have been raised in the pending state proceedings.”).
* * *
In sum, McLeod falls short of demonstrating a compelling reason for this court to consider intruding into pending state child-custody proceedings through the granting of either the injunctive or monetary relief she seeks. See, e.g., Bettencourt v. Board of Registration in Med., 904 F.2d 772, 777 (1st Cir.1990) (noting that injunction could immobilize and money damages embarrass pending state proceedings to revoke plaintiff's license to practice medicine).
Id. at pp.1-2. Footnote omitted. Plaintiff McLeod appealed the District Court’s decision
to the First Circuit, which in an unpublished opinion ruled that:
After a thorough review of the parties submissions and of the record, we affirm. In order to establish that an exception to abstention under Younger v. Harris, 401 U.S. 37 (1971), would be appropriate, appellant must show that the “extraordinary circumstances” in question “render the state court incapable of fairly and fully adjudicating the federal issues before it.”Id. (quoting Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975)). This is a “narrow exception” to the Younger abstention doctrine. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); see also United Books, Inc. v. Conte, 739 F.2d 30, 34 (1st Cir.1984). The irreparable injury that is threatened must be one “ ‘other than that incidental to every [ ] proceeding brought lawfully and in good faith.’” Younger, 401 U.S. at 47 (quoting Douglas v. City of Jeannette, 319 U.S. 157, 164 (1943)).
Appellant has not alleged facts showing that the state court is somehow incapable of adjudicating this matter including the federal issues, nor has she alleged an injury that is different “than that incidental to every [child protection] proceeding brought lawfully and in good faith.' ” Id. Appellant's argument that her federal action would not interfere with the
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state action is unsupported by detailed argument and is inherently unpersuasive; the conduct of parts of the same controversy in federal court, after a state proceeding has begun, is an interference with the state proceeding. Further, it appears that if the federal court were to grant the relief she requests, its judgment would conflict with the previous order of the state court to “cease reunification.” Abstention is most appropriate in such circumstances.
Thus, the lower court correctly abstained from this matter. See Moore v. Sims, 442 U.S. 415, 434-35, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (since state courts traditionally have addressed important matters of family relations, allegation that those relations are threatened by ongoing state proceedings is insufficient, standing alone, to justify exception to abstention doctrine). McLeod v. Maine Department of Human Services, 229 F.3d 1133, 2000 WL 869512 (1st
Cir. 2000). Additionally, in Malachowski v. City of Keene, 787 F.2d 704(1st Cir. 1986), the
First Circuit applied Younger and abstained from entertaining parents’ alleged violations
of constitutional rights that occurred during the context of a state court juvenile
delinquency proceedings. In that case, the Malachowski’s daughter Amy was placed in
foster care “pursuant to a consent order entered as a result of a petition alleging abuse
and/or neglect filed in Keene District Court by the New Hampshire Division of Welfare.”
787 F.2d at 706. Four months later, Amy was returned to her parents’ custody. Id. Four
months after that Amy’s mother reported to the local police that Amy had run away. Id.
Amy was located by her parents and brought home, however during his investigation a
police officer saw Amy strike her father. Id. Amy was taken into custody and
subsequently arraigned on a juvenile delinquency petition. Id. Several hearings were
held and at the “dispositional hearing” the Keene District Court ordered that Amy remain
in the custody of a foster care – the Youth Services, Inc.; family counseling and
scheduled a court review two months later. Id. Neither Amy, through her court
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appointed attorney, or her parents appealed. Subsequently, Amy’s parents filed a §1983
action in federal court seeking redress for alleged violations of their own constitutional
rights. Id. Although there are some factual distinctions to the present case, the First
Circuit’s reasoning for abstaining under Younger is helpful. The First Circuit held that:
There is no question that Younger principles apply to the instant action. The Supreme Court has expanded the applicability of Younger to many categories of civil proceedings, including a state child custody action. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). Whether the Keene District Court juvenile delinquency proceedings are characterized as quasi-criminal or as child custody proceedings, therefore, the propriety of federal interference with them must be judged by Younger standards. Insofar as appellants seek an order returning Amy to their custody, “the fact that ‘family law’ is at issue here makes ‘abstention’ particularly appropriate.” Friends of Children, Inc., supra, 766 F.2d at 37.
Applying those standards, we find that the district court's abstention from asserting jurisdiction over appellants' injunctive claims was fully justified. Appellants filed the instant complaint in federal court on November 1, 1984, before the end of the 30-day period specified in N.H.R.S.A. 169B:29 during which Amy, or perhaps appellants on Amy's behalf, could have appealed the October 11 dispositional order to the New Hampshire Superior Court. Even if appellants could not bring a direct appeal on their own behalf under that statute, they had open to them the option, with no express time limitation, of seeking a writ of certiorari from the New Hampshire Supreme Court to review the Keene District Court proceedings. N.H.R.S.A. 490:4. See In re John M. and David C., 122 N.H. 1120, 1130, 454 A.2d 887 (1982). Under these circumstances, see Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11, 95 S.Ct. 1200, 1209-11, 43 L.Ed.2d 482 (1975), Younger policies counsel abstention.
Furthermore, although N.H.R.S.A. 169-B:29 fixed the state district court's dispositional order as the only proper occasion for the minor's appeal as of right to the superior court for a de novo hearing-reflecting a legislative policy judgment that a right to de novo review at any other point in juvenile delinquency proceedings is unnecessary, see In re Cindy G., 124 N.H. 51, 58, 466 A.2d 943 (1983)-the district court juvenile delinquency proceedings were not finally concluded at that time. Instead, the district court retains jurisdiction and must review its disposition at least once annually. N.H.R.S.A. 169-B:31; In re Cindy G., supra, 124 N.H. at 57-58, 466 A.2d 943. In the instant case the record reveals that the Keene District Court has reviewed Amy's disposition on at least two occasions following its initial dispositional order, on December 27, 1984, and on February 13,
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1985. Appellants' filings herein indicate that appellants have presented further requests for a return of Amy's custody, or for other relief, to the Keene District Court on numerous occasions. At the time the district court dismissed appellants' injunctive claims, therefore, the Keene District Court still remained available as a local forum where appellants could press objections to Amy's custody.
Id. at 708-709. The Rhode Island Family Court has entered orders adjudging Plaintiff Children as
abused or neglected and the Family Court is required by statute to continue to exercise jurisdiction over these cases and to conduct ongoing court hearings in each case. (See R.I.G.L 40-11-12.1, 40-11-12.2 and Rhode Island Family Court Rules of Juvenile Proceedings Rule 17). Moreover, many children in the class Plaintiffs seek to certify are the current subjects of petitions alleging abuse or neglect. The First Circuit has determined that Younger applied to a child welfare case where a finding of abuse or neglect has been entered and termination of parental rights is to follow. Based on the holdings of the United States Supreme Court and the First Circuit, the pending Family Court cases may be characterized as “enforcement” type proceedings under Younger. The Defendants have clearly satisfied any “threshold”.
b. Comity Plaintiffs’ argument that abstention under Younger is not necessary as traditional notions of comity are not offended because the State of Rhode Island accepts funding under Title IV-E for its child welfare system is without merit. Plaintiffs’ assert that their “Amended Complaint invades no preserved field of unfettered state sovereignty, but instead seeks prospective injunctive relief strictly over those state agency officials responsible for operating Rhode Island’s child welfare system in compliance with federal
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mandates.” Plaintiffs direct this Court to the First Circuit’s decision of Rio Grande Community Health Center, Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) and Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *5 n.5 (E.D. Mich. Apr. 17, 2007).
The First Circuit failure to abstain under Younger in Rio Grande was not because comity would not be impacted because Puerto Rico participated in the federal-state funded Medicaid Program but, rather, the First Circuit declined to abstain only after finding that the facts of Rio Grande did not satisfy the requirements of Younger or the Middlesex test. The Plaintiffs also refer this Court to United States District Court for the Eastern District of Michigan’s decision in Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *5, n.5 (E.D. Mich. Apr 17, 2007); however never performed any legal analysis. Rather, the Dwayne B. Court merely referred to a conclusory statement by Plaintiffs in their memorandum and did not cite any specific case law in support11. The Plaintiffs’ claim that comity is not a concern implicated by this lawsuit is without legal support or merit.
c. The Three Prong Younger Test 1. Federal Litigation Would Interfere with Ongoing Proceedings Before the Rhode Island Family Court a. Ongoing Family Court proceedings
The Family Court has exclusive original jurisdiction over neglected or abused children residing or being in the State. R.I. Gen. Laws, §14-1-5. At the time the
11 The Dwayne B. Court’s legal analysis to support its position is set forth at footnote 5 where it stated “Nonetheless, there are no “comity” or “federalism” concerns presented by this lawsuit because the State of Michigan has voluntarily agreed to federal oversight of its foster care system in exchange for federal funding. (See Plfs.' Mot. at 11-13.)”
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complaint was filed in this case all plaintiff children had open cases before the Rhode Island Family Court. Currently only two (2) of the ten (10) named children have open cases that originated as abuse or neglect petitions, as the other eight plaintiff children have been adopted. At the time of adoption, the Family Court closed the underlying abuse/neglect petitions and the children were found to no longer in DCYF custody or foster care under allegations of abuse of neglect.
While in the court ordered legal custody of DCYF from abuse/neglect petitions, the plaintiff children at the very least appeared before the RI Family Court for yearly permanency hearings, R.I. Gen. Laws §40-11-12.1, and enters an order in the best interest of the child. R.I. Gen. Laws §40-11-12.1(e). The Family Court is vested with the authority to review and address DCYF’s service plan for the child at a minimum of every six months. R.I. Gen. Laws §40-11-12.2. Although it is evident from state court documents produced for the name plaintiffs, the Family Court’s interaction with the plaintiff children exceeded the minimum in order to address individual issues. As a matter of law, the Family Court is vested with the exclusive authority to pass judgment on the plan. In pertinent part, R.I. Gen. Laws §40-11-12.2(a) provides: “[t]he plan may be approved and/or modified by a justice of the family court and incorporated into the orders of the court, at the discretion of the court.” The plaintiff children’s cases before the Family Court are clearly “ongoing” for purposes of Younger analysis. See 31 Foster Children, 329 F.3d at 1275; J.B., 186 F.3d at 1291; Carson P., 240 F.R.D. at 523; Laurie Q., 304 F.Supp.2d at 1204.
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b. Interference The Defendants addressed at length the Family Court’s very active role in determining the best interest for an abused or neglected child that has been placed in DCYF’s legal custody when analyzing the “interference” argument. The United States District Court for the District of Nebraska, in Carson P., found that a lawsuit, strikingly similar to this one, would have the practical effect of interfering with the ongoing juvenile proceedings of the abused or neglected children named as plaintiffs. Similar to Carson P., at the very least a child in DCYF’s custody in foster care is mandated by statute to have a permanency hearing every twelve (12) months. As is apparent from these cases, however, the Family Court has had more than yearly interaction with the children, as is evident by the facts relating to each of the ten (10) named plaintiff children. See also J.B. v. Valdez, 186 F.3d 1280, 1291-1292 (10th Cir 1999)(The Tenth Circuit found that the plaintiffs were in state custody were subject to “dispositional and biannual review hearings” before New Mexico’s Children’s Court and though “admittedly less than adversarial in nature, were judicial in nature. These hearings existed as long as the child remained in state custody. The Tenth Circuit held that “the continuing jurisdiction of the Children’s Court to modify a child’s disposition, … coupled with the mandatory six-month periodic review hearings, … constitutes an ongoing state juridical proceeding” for purposes of the second prong under Younger.) The Carson P. Court also addressed the issue of whether the Federal Court action would interfere with their ongoing state proceedings for abused or neglected children in state foster care. As they did in this case, the Carson P. plaintiffs’ did not request any specific or detailed injunctive relief. 240 F.R.D. at 524. Rather, “[t]he prayer for relief in
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their complaint essentially request[ed] the court to enter an order requiring the defendants to cease violating the plaintiffs' constitutional rights and comply with federal statutory requirements. Under circumstances such as [that], some courts have refused to abstain under Younger because, absent a specific request for injunctive relief, they could not conclude that a federal order would necessarily interfere with ongoing state proceedings.” Id. at 524-525 (citing to Olivia Y. ex rel. Johnson v. Barbour, 351 F.Supp2d 543, 570 (S.D.Miss.2004); Kenny A. ex. Rel. Winn v. Perdue, 218 F.R.D. 277, 286 fn.5. However, the Carson P. Court was not daunted by the ambiguously worded requested relief, but rather, conducted its own analysis so as to be faithful to the Supreme Court’s stated purpose of Younger – to preserve the principles of comity and Federalism. The Carson P. Court held that:
The plaintiffs' artful pleading and lack of specificity should not serve to circumvent the principles of comity protected by Younger abstention; that is, the plaintiffs' failure to identify the specific relief requested should not assist them in defeating defendants' motion to dismiss on the basis of Younger abstention. Therefore, rather than relying on the plaintiffs' prayer for relief to determine what injunctive remedy the plaintiffs may request, the court will rely on the allegations of the amended complaint, the presumption being that the plaintiffs will ultimately request an order remedying each allegedly wrongful action or inaction performed by HHS. Given the specific allegations of the amended complaint, the District Court hypothesized as to plaintiffs requested injunction would require the State to perform. Id. at 525-526. Assuming the Plaintiffs request each of the foregoing types of relief, the question the Carson P. court turned to was “whether a federal order granting such relief will interfere with the ongoing proceedings in the Nebraska juvenile courts.” Id. It found that “[t]his determination, in turn, depends on the extent to which Nebraska juvenile court judges are already vested with oversight responsibility and authority to consider the impact of the
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foregoing complaints with respect to each child and enter orders for the benefit of such
children under their jurisdiction.” Id. The result of this legal analysis was the Court’s
determination:
that injunctive orders by this court which attempt to impose parameters on HHS for determining where a child should be placed; if and how often a child should be moved to another placement; the child's length of stay in HHS custody; the methods employed and attention given to parental rights termination proceedings; the supervision of the children while in HHS custody; the level of training, experience, and workload capability of HHS caseworkers assigned to a child; the level of reporting provided to the court by HHS; the rights to visitation with family or former foster families; and the types of medical, dental, mental health, and behavioral treatment a child may need, would both directly and indirectly interfere with the plenary jurisdictional and decision-making authority of the Nebraska juvenile courts. The injunctive relief ordered would give the federal district court an oversight role over Nebraska's child welfare program, and would give it direct control over decisions currently vested in the juvenile court. J.B., 186 F.3d at 1292.
In this case, the plaintiffs are seeking relief that would interfere with the ongoing state dependency proceedings by placing decisions that are now in the hands of the state courts under the direction of the federal district court. The declaratory judgment and injunction that they request would interfere with the state proceedings in numerous ways. The federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff, such as whether a particular placement is safe or appropriate or whether sufficient efforts are being made to find an adoptive family. The federal court relief might effectively require an amendment to a child's case plan that the state court would not have approved, and state law gives its courts the responsibility for deciding upon such an amendment. .... To say the least, taking the responsibility for a state's child dependency proceedings away from state courts and putting it under federal court control constitutes “ federal court oversight of state court operations, even if not framed as direct review of state court judgments” that is problematic, calling for Younger abstention.... The relief that the plaintiffs seek would interfere extensively with the ongoing state proceedings for each plaintiff.
31 Foster Children, 329 F.3d at 1278-1279 (dismissing plaintiffs' substantive and procedural due process claims, constitutional claims for denial of family association, claims based on alleged violations of the AACWA and EPSDT on the basis of Younger abstention). See also J.B., 186 F.3d at 1291-92. (concluding Younger abstention was required
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because the plaintiffs' federal action would interfere with the proceedings of New Mexico's Children's Court in that the federal court would, in effect, assume an oversight role over the entire state program for children with disabilities).
Id. at 529.
Similarly, the Carson P. plaintiffs argued that its complaint was not directed at the
state courts but, rather, at Nebraska’s Department of Health and Human Services
(“HHS”)–the agency that cares for the foster children. Id. They argued further that “any
federal court order would assist rather than interfere with the juvenile court by imposing
higher standards on HHS”. Id. The Carson P. Court disagreed, reasoning that:
Article V, §27 of the Nebraska Constitution authorized the Nebraska legislature to “establish courts to be known as juvenile courts, with such jurisdiction and powers as the Legislature may provide.” Neb. Const. Art. V., §27. Consistent with this authority, the legislature enacted Neb.Rev.Stat. §43-285 which states:
When the court awards a juvenile to the care of the Department of Health and Human Services, an association, or an individual in accordance with the Nebraska Juvenile Code, the juvenile shall, unless otherwise ordered, become a ward and be subject to the guardianship of the department, association, or individual to whose care he or she is committed. Any such association and the department shall have authority, by and with the assent of the court, to determine the care, placement, medical services, psychiatric services, training, and expenditures on behalf of each juvenile committed to it.
Neb.Rev.Stat. §43-285(1)(LEXIS 2005)(emphasis added). Accordingly, “ [e]ven though any remedial order would run against the Department, state law makes it a duty of state courts to decide whether to approve a case plan, and to monitor the plan to ensure it is followed.” 31 Foster Children, 329 F.3d at 1279. Exercising federal court oversight over HHS' conduct on behalf of a child would serve to duplicate the authority already afforded to the Nebraska juvenile court by the Nebraska legislature. Federal court injunctive orders against HHS would undermine and interfere with the Nebraska juvenile court's ability to exercise the full extent of its authority over juvenile court proceedings.
Id. at 529-530.
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As the requested relief is similarly broad and sweeping in this case, the
Defendants feel compelled to provide this Court with an analysis similar to Carson P. to
demonstrate how this lawsuit would interfere with the plaintiff children’s ongoing Family
Court cases. Based on their Amended Complaint, these Plaintiffs would be asking this
Court to issue an injunction requiring the State of Rhode Island to:
 Change its policies applicable to locating, relocating, and selecting placements for children; specifically, o Place children in licensed foster homes and expedite the licensing of kinship foster homes, (Amended Complaint ¶¶ 5, 133, 205 ); o Place siblings in same foster care (Amended Complaint ¶153); o Ensure renewal of licenses of foster homes (Amended Complaint ¶ 133, 205, 209); o Move children less frequently and to more appropriate placements, (Amended Complaint ¶5, 142, 145, 149-150); o Delay in reunifying children with their parents without providing services needed to ensure the children’s safety, (Amended Complaint ¶5, 168); o Limit the use of institutional placement for children, (Amended Complaint ¶¶ 5, 137, 140); o Limit the placement time spent in emergency shelters and other temporary facilities, (Amended Complaint ¶¶138); o Adequately train, prepare, inform, support or monitor foster homes and institutions (Amended Complaint ¶¶ 133, 136, 185-186); o Pay foster care providers amounts which are sufficient to cover the expenses of the child’s necessary care, (Amended Complaint ¶¶ 135, 216-218);
 Reduce the length of stay in state custody by developing and implementing better case plans, terminating parental rights more quickly, and recruiting prospective adoptive parents (Amended Complaint ¶5, 161-162, 166-167, 173, 178);
 Adopt policies aimed at providing better supervision of children in its care; specifically, o Limit HHS caseworker caseloads, and provide caseworkers with more experience and training (Amended Complaint ¶¶ 5, 144, 157, 177, 187-189, 197), o Monitor foster homes and supervise biological parents more closely during reunification or visitation, (Amended complaint ¶¶ 129, 164),
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 Develop and implement case plans that address children’s safety, medical, mental health, education and permanency needs, (Amended Complaint ¶¶ 5, 155-156, 179-181, 183);
 Afford access to visitation with family members, (Amended Complaint ¶154)
 Place children in foster homes as oppose to more costly institutions so that Rhode Island Title IV-V funding from the Federal Government (Amended Complaint ¶¶ 210-215).
Assuming this was the requested relief sought by the plaintiffs, this Court, similar to
Nebraska, must determine whether a federal court order would interfere with ongoing
proceedings before the Rhode Island Family Court. The Defendants submit that the
answer to this question is a resounding “yes”. Injunctive relief would place this Court in
the position of: (1) “fundamentally changing the dispositions … of” the Rhode Island
Family Court over abused or neglected children; (2) making dispositional decisions such
as placement, reunification, visitation and services for abused or neglected children in
this state; and (3) sitting in oversight of the R.I. Family Court. See J.B. 186 F.3d at 1291129212. See also, E.T. v. George, 681 F.Supp.2d 1151 (E.D. Calif. 2010)(United States
District Court for the Eastern District of California abstained under Younger from
addressing a lawsuit brought by abused and neglected children against the county
12 The J.B. Court reasoned that: …plaintiffs federal action would interfere with this proceeding by fundamentally changing the dispositions and oversight of the children. The federal court would, in effect, assume an oversight role over the entire state program for children with disabilities. This places the federal court in the role of making dispositional decisions such as whether the return the child to his parents in conjunction with state assistance or whether to modify a treatment plan. These are the kind of decisions currently made by the New Mexico Children’s Court through the periodic review process. The current suit would prevent the Children’s Court from carrying out this function.” Citations omitted.
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dependency courts as the relief sought would interfere with ongoing cases)13.
13 Although the county court, chair of the judicial council, etc. were named Defendants in this lawsuit and allegations concerned the court’s “overburdened caseload” do not render the District Court’s Younger analysis and reasoning unsuitable to this lawsuit. Plaintiffs alleged in their complaint “critical dependency court systemic failures, which affect[ed] the lives of thousands of children.” 681 F.Supp. 2d at 1160. Similar to this case, the E.T. plaintiffs argued that the federal court did not need to contemplate a remedy at the initial stage (motion to dismiss) but, rather, if they prevailed the federal court could issue a remedy that avoided Younger concerns. Id. at 1171. In finding that the lawsuit would interfere with ongoing state judicial proceedings, the District Court reasoned:
The relief requested by plaintiffs in this case would necessarily interfere with their ongoing dependency court cases and those of the putative class. The requested declaratory relief calls into question the validity of every decision made in pending and future dependency court cases before the resolution of this litigation. Specifically, plaintiffs seek a finding that the number of lawyers currently provided are insufficient to perform the enumerated duties that they are required to perform under both state and federal law. Plaintiffs similarly seek a finding that they have not been granted meaningful access to the courts or appropriate consideration of their matters due to judicial caseloads. While plaintiffs contend that each individual plaintiff would still have to demonstrate prejudice in order to invalidate the decision rendered in each pending case, the court cannot overlook the practical impact of the proposed declaratory relief on the 5,100 active dependency court cases; this court's order would substantiate a finding of a constitutional or statutory violation in every one of those active cases. Even if not determinative in every instance, this finding would impact each of the putative class member's cases. …..
*** Further, the broad and ill-defined injunctive relief requested by plaintiffs would impact the conduct of the proceeding themselves, not just the body charged with initiating the proceedings. See Joseph A., 275 F.3d at 1269. If the court finds constitutional or statutory violations based upon the amount of time or resources spent on juvenile dependency court cases, an injunction directed to remedying those violations would require the court to ensure that in each case the child was receiving certain services or procedures that the court has declared constitutional. Enforcement could not simply end with a policy directive to the Judicial Council, the AOC, or the Sacramento Superior Court, but would require monitoring of its administration.
Id. at 1172-1173. Footnote omitted.
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2. The Child Welfare System Is An Important State Interest
“’Family relations are a traditional area of state concern.” Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). The state has a compelling interest in quickly and effectively removing victims of child abuse and neglect from their parents and placing them in safe and suitable homes. State conduct performed and proceedings instituted to protect children from abuse implicate sufficiently important state interests to justify Younger abstention. Moore, 442 U.S. at 435, 99 S.Ct. 2371 (applying Younger abstention to case challenging the state's temporary removal of a child from an allegedly abusive home environment).’” Carson P., 240 F.R.D. at 524. See also, Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178, 193 (D.R.I.2004).
Plaintiffs have taken the position in this lawsuit that the child welfare system is not an important state interest for purposes of the second prong of Younger analysis. Contrary to Plaintiffs’ position, this Court, the First Circuit and other federal courts acknowledge that a state’s child welfare system is an area of important state interest for purposes of Younger and the Middlesex test. See Moore v. Sims, 442 U.S. 415, 434, 99 S.Ct. 2371, 2382, 60 L.Ed2d 994 (1979)(“Family relations are a traditional area of state concern. This was recognized by the District Court when it noted the ‘compelling state interest in quickly and effectively removing the victims of child abuse from their parents.’”) Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178, 193 (D.R.I. 2004)(“This Court acknowledges the important and sensitive nature of Rhode Island's child welfare program and the Family Court's role regarding children in state care.”); McLeod v. State of Maine Department of Human Services, 1999 WL 33117123 (D.Me. 1999), affirmed McLeod v. Maine Department of Human Services, 229 F.3d 1133, 2000
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WL 869512 (1st Cir. 2000)(The District Court held that the “question of child custody implicates an important, if not paramount state interest.”); Carson P., 240 F.R.D. 456, 524(D.Neb. 2007)(“The state has a compelling interest in quickly and effectively removing the victims of child abuse and neglect from their parents and placing them in safe and suitable homes. State conduct performed and proceedings instituted to protect children from abuse implicate sufficiently important state interests to justify Younger abstention.”).
Even cases repeatedly cited by Plaintiffs’ in support of their position acknowledge that a child welfare system is an important state interest for the purposes of Younger. See Dwayne B. v. Granholm, 2007 WL 1140920, *5 (E.D.Mich.2007)(“It is not disputed that Michigan has a strong interest in the welfare f children in its foster care system”); Kenny A. v. Perdue, 218 F.R.D. 277, 285 (N.D.Ga. 2003)(“Nor is there any dispute that these proceedings implicate important state interests in the care, disposition and welfare of deprived children.”). Defendants submit that the second prong of Younger has been satisfied.
3. The Plaintiffs Have An Adequate Opportunity To Advance Their Federal Constitutional Claims Before the Family Court.
This last prong of Younger requires this Court to determine whether the Rhode Island Family Court proceedings provide these federal plaintiffs the opportunity to raise their alleged federal claims. The Defendants submit that the Family Court provides each of these named plaintiffs the ability to address the various claims and, therefore, the Federal Court should abstain.
The issue before this Court is “not whether plaintiffs’ claims were raised in the
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pending state proceedings, but whether they could have been raised.” Carson P., 240 F.R.D. at 530. It is the plaintiffs’ burden to prove to this Court that their individual claims could not be adequately raised before the Rhode Island Family Court. Id. citing Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979)(“holding the district court should have abstained under Younger from considering a constitutional challenge to portions of Texas statutory scheme for investigating suspected child abuse, though not every issue, including whether its computerized system for collecting and disseminating child-abuse information was constitutional, had been raised in a state judicial proceeding.”) Specifically, “[t]he plaintiffs must prove they could not have obtained a juvenile court ruling protecting them from …[DCYF’s] allegedly unlawful conduct which caused them harm or the imminent risk of future harm, either because the …[Family Court] had no jurisdiction to consider the federal questions raised in this case, had no authority to award a remedy, or because the plaintiffs lacked adequate representation in that forum.” Id. at 531. The plaintiffs cannot make this showing and sustain their burden.
The Carson P.Court recognized that: [t]he Nebraska juvenile court can exercise substantial control over HHS for the protection of a child, can issue rulings governing HHS' conduct on behalf of that child, and can modify or reject HHS's recommendations regarding a child's care and placement while in HHS custody. The plaintiffs each have a court-appointed guardian ad litem to assist in the juvenile court proceedings-an attorney and officer of the court statutorily obligated to act for the plaintiff and protect his or her interests. Neb.Rev.Stat. 43—272. (Footnote omitted). Id. at 532. The Nebraska District Court found it of importance that each plaintiff child had a court appointed guardian ad litem to act in their best interest. Each plaintiff in this case has a court appointed guardian ad litem or CASA attorney representing their best
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interests at each and every Family Court hearing. It specifically distinguished the situation in Nebraska from a case filed by Children’s Rights in Georgia. In its decision, the Court noted that the right to legal representation was not available in the Georgia Children’s’ Rights case of Kenny A., Id. at fn 47. Additionally, the Nebraska Juvenile Court had the ability to address claims challenging the constitutionality of statutes. Id. at 531. Based on its analysis, the Carson P. Court determined that each of its individual plaintiffs could have raised the issues presented before the State’s Juvenile Court. Id. at 532.
Similar to Nebraska, the Rhode Island Family Court is a court of limited jurisdiction; however, it also has “very broad power to issue rulings for the protection and welfare of children.” Carson P., 240 F.R.D. at 531. See In re: Stephanie B., 826 A.2d 985, 992 (RI2003)(“Generally, the Family Court is vested with broad powers over matters affecting children.”); Carr v. Prader, 725 A.2d 291 (RI 1999). It is also important to note that the Rhode Island Family Court not only has exclusive original jurisdiction over abused or neglected children; but also, is vested with the authority “to declare rights, status, and other legal relations whether or not further relief is or could be claimed” under the state’s Uniform Declaratory Judgment Act. R.I. Gen. Laws §9-30-1.
The Family Court has the authority to address constitutional claims that come before it. The Family Court has in the past ruled that DCYF has not made “reasonable efforts” at reunification and, based on this determination has dismissed DCYF’s petition to terminate parental rights. See In re Manuel P., 889 A.2d 192 (2006)(The Family Court denied DCYF’s petition to terminate parental rights of her two sons as the court found that DCYF failed to make referrals for alternative services recommended by
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evaluating professionals). The Family Court is also empowered to address issues implicating constitutional dimensions. See In re: Destiny D., 922 A.2d 168 (RI 2007)(Issue of the parent’s Fifth Amendment privilege raised and addressed) see also In re: Stephanie B., 826 A.2d 985 (RI2003)(The Rhode Island Supreme Court agreed with non-party that its due process rights violated by a Family Court procedure.).
As framed by the Carson P. Court, “… the precise question is not whether a … [Rhode Island Family Court] can be called upon to issue a ruling declaring that specific … [DCYF] policies violate the constitution or federal law. Rather, the plaintiffs must prove the …[family court] cannot adequately consider evidence of … [DCYF’s] conduct or likely future conduct toward the individual plaintiffs, determine if such conduct violates their rights under federal constitutional or statutory law, and enter orders protecting the plaintiffs from …[DCYF’s] allegedly unlawful conduct.” 240 F.R.D. at 531. This Court should be mindful that:
[a] “ federal court should assume that the state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.” Pennzoil Co., 481 U.S. at 14, 107 S.Ct. 1519. The court “ will not engage any presumption ‘ that the state courts will not safeguard federal constitutional rights.’” Norwood, 409 F.3d at 904 (quoting Neal v. Wilson, 112 F.3d 351, 357 8th Cir.1997)(quoting Middlesex County Ethics Comm., 457 U.S. at 431, 102 S.Ct. 2515)). Id. Like Carson P., plaintiffs lack any evidence that Rhode Island’s Family Court and its judges are unaware of or unable to interpret the federal statutory or constitutional laws governing or impacting their rulings and procedures, nor to the extent a party claims federal law was violated at the juvenile court level, that appellate review is not available in the Rhode Island Supreme Court. Id. Indeed, since the Child Advocate has never intervened for any of the named plaintiffs in any Family Court proceeding, she cannot
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even allege that such matters were presented to the Family Court, let alone rejected by them.
Plaintiffs claim that the Family Court cannot adjudicate or remedy systemic constitutional violations that are harming them. This is a remarkable and unsupported claim since plaintiffs’ counsel have never approached the Family Court with any evidence that the Plaintiffs were in unsafe and inappropriate placements, were not receiving appropriate services or treatment despite the statutory authority and responsibilities of at least one counsel. Had such claims been brought before the Family Court during the numerous hearings and case reviews, the Family Court would have had an opportunity to address them.
The Rhode Island Family Court has the authority and opportunity to address the harms alleged by Plaintiff Children. The Family Court not only can address placement of children but, also has the final say over such placement and it has even directed a specific person with whom to place the children. The Family Court reviews each child’s case plans, which detail the proposed treatment and placement for each child, addresses a permanency plan and requires documentation of the steps DCYF is taking with respect to permanent placement. R.I. Gen. Laws §42-72-10. If the Family Court disagrees, it has final say and can require that the case plan be modified. R.I. Gen. Laws §40-11-12.2. The Family Court has the authority and the procedural safeguards to address the harms Plaintiffs allege. Plaintiffs, however, never availed themselves of this resource for protection. 14
14 Other Federal Courts have accepted allegations that their respective state court was in insufficient venue to address systemic deficiencies and, thus, Younger did not apply. See
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The Eleventh Circuit in 31 Foster Children addressed a similar argument offered
by plaintiff children in an attempt to thwart abstention. The Eleventh Circuit rejected the
argument, finding that the Florida state court “can remedy in a dependency proceeding
the harms that a child in the defendants' custody and in that court's jurisdiction might
suffer.” 329 F.3d at 1279. The Eleventh Circuit found that the state court could address
harms the plaintiffs had suffered by ordering that siblings be placed together in foster
care, that a child be placed in a therapeutic setting and that if the state child welfare
agency was not complying with the case plan it could be held in contempt. 329 F.3d at
1279-1280. The Eleventh Circuit further found that:
…each of these plaintiffs is represented by counsel. There are no procedural constraints preventing them from presenting the claims in this case to the state courts in their dependency review hearings. They have not provided unambiguous authority establishing that the procedures available in state court dependency proceedings do not provide an adequate opportunity for them to raise their constitutional claims. At dependency review proceedings for each plaintiff in this case, the state court will consider whether the parties have complied with the child's case plan, the appropriateness of that child's current facility placement, educational placement, and any special needs the child has. Fla. Stat. §§ 39.701(7)(d), (g). If the Department is not complying with the case plan for the child, the court can hold it in contempt. Id. §§ 39.701(8)(c), (g). If the plaintiff claims that he is in an unsafe and inappropriate placement, as we have already noted, the court can order the Department to comply with the case plan by putting him in a safe and appropriate place. Id. §§ 39.601(3)(e); 39.701(8)(c). If the plaintiff claims that he has been in foster care longer than reasonably necessary, the court can require the Department to document the steps that it is taking toward permanent placement. Id. § 39.701(f). If the plaintiff has not been placed with his siblings, the court can order them be placed together or it can require visitation between them. See Div. of Family Servs. v. S.R., 328 So.2d 270, 271 (Fla. 1st DCA 1976).
The availability of these forms of relief and the existence of the state courts' protective order and contempt powers mean that the plaintiffs have
Dwayne B. v. Granholm, 2007 WL 1140920 (E.D.Mich 2007); LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993); Kenny A. v. Perdue, 218 F.R.D. 277 ((N.D.Ga.2003).
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not carried their burden of establishing that the ongoing state court proceedings do not provide an adequate opportunity to raise and vindicate each plaintiff child's individual claims. Therefore, the third and final Middlesex factor is satisfied. The district court did not abuse its discretion in abstaining under the Younger doctrine.
329 F.3d at 1282. Footnote omitted. In its decision, the Eleventh Circuit acknowledged that the D.C. Circuit rejected Younger abstention in similar case, LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1323-24 (D.C.Cir.1993), but found that case to be distinguishable. Id. fn 12.
The United States District Court for the District of Nebraska addressed the same argument in opposition to the third prong and was not persuaded. 240 F.R.D. at 531-532. The Carson P. Court found that:
The Nebraska juvenile court can exercise substantial control over HHS for the protection of a child, can issue rulings governing HHS' conduct on behalf of that child, and can modify or reject HHS's recommendations regarding a child's care and placement while in HHS custody. The plaintiffs each have a court-appointed guardian ad litem to assist in the juvenile court proceedings-an attorney and officer of the court statutorily obligated to act for the plaintiff and protect his or her interests. 240 F.R.D. at 532. Footnote Omitted. The Carson P. Court further found that the issues could have been raised before the juvenile court and, as such, the third prong had been satisfied and abstention appropriate. In line with the reasoning in 31 Foster Children and Carson P., the Rhode Island Plaintiffs’ claim that the state Family Court is an inappropriate forum to address its constitutional claims must fail. Plaintiffs cannot sustain their burden of proof and demonstrate an absence of evidence to support for the third prong of Younger. Plaintiffs’ further attempt to avoid Younger abstention with yet another sweeping allegation – that the Family Court is not an appropriate forum to entertain a class action
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lawsuit. Plaintiffs’ argument is premature and presupposes that this Court will certify a class. Moreover, the Carson P. Court rejected a similar argument that the Nebraska state juvenile court was an inappropriate forum to address a class action in an attempt to thwart the application of Younger. Id. at 531. The Carson P. Court denied the motion to certify a class, however, it went on to state that “as the court held in Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1274 (10th Cir.2002), there is no persuasive authority holding “that a party is entitled to avoid the effects of the Younger abstention doctrine in cases where relief is available to individual litigants in ongoing state proceedings but not to represented parties in a class action.” Joseph A., 275 F.3d at 1274.´” Id. Carson P. acknowledged that the federal courts in Kenny A., 218 F.R.D. at 287. Brian A. ex rel. Brooks v. Sundquist, 149 F.Supp.2d 941, 957 (M.D.Tenn.2000) were in disagreement with its ruling but found them distinguishable. Id. at fn 46.
Contrary to Plaintiffs’ assertions, the third prong of the Younger analysis has been satisfied in this case. The Rhode Island Family Court provides the Plaintiffs an adequate opportunity to advance their constitutional claims. The fact that Plaintiffs never raised the alleged harms or constitutional claims in the numerous hearings convened before the Family Court or that the Child Advocate, who never sought to intervene in any of these cases, has proclaimed that it would be “inefficient and ineffectual to raise these claims in myriad Family Court proceedings” is insufficient to avoid Younger abstention.
The prerequisite elements for Younger abstention are present in this case. The pending Family Court proceedings are the type envisioned by Younger and its progeny. The three prong test has been satisfied. Plaintiffs sweeping assertions and assumptions of class certification are an insufficient basis to deny the application of Younger. The
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Defendants pray that this Court abstain from entertaining this lawsuit and grant their Motion to Dismiss the Amended Complaint.
d. Office of Child Advocate v. Lindgren This Younger analysis would not be complete without addressing the case of Office of Child Advocate v. Lindgren, 296 F.Supp.2d 178 (D.R.I. 2004). The Lindgren case is so factually distinguishable from this case as to be inapposite. In Lindgren, the defendant filed a motion to vacate a consent decree (pursuant to F.R.C.P. 60(b)) that had been entered into twelve (12) years before. One of the grounds that defendant relied on in support of the motion to vacate was the Younger Doctrine. Ultimately the Lindgren Court rejected Younger abstention, however, it expressly stated that it concluded that “no federal abstention rules relate to a basis for vacating the … [consent decree] in any event.” 296 F.Supp.2d at 189. Additionally, the Lindgren Court determined that the facts of its case did not warrant abstention because there was no known pending state proceeding with which the Court’s judgment would interfere. Id. at 190. In Lindgren, the suit was filed in the name of the Child Advocate and not individual minor plaintiffs as is the present case. The children named in the motion to adjudge the defendant in contempt did not have a case pending before the Rhode Island Family Court and, in fact, they were no longer minors. The Lindgren Court stated that: Defendant has not made a showing that there is a pending state proceeding regarding any child involved in this case. That is obviously because Plaintiff has not brought the motion to adjudge in contempt on behalf of any specific child in DCYF custody. Although the question of abstention may recur when the Court hears that motion on its merits, it is not an issue now. One thing is clear. Although the Family Court retains jurisdiction over children in state custody, that Court has no present jurisdiction over any of the three children referred to in Plaintiff's Complaint because those children are presently in their thirties. All that this Court can say now in view of the present posture of this case, is that enforcing the SACD will
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not interfere with any known Family Court proceeding or decision. Since there is no known ongoing state proceeding regarding any child involved in the case at present, there is no basis for this Court to abstain under Younger v. Harris at this time. Id. at 191. Unlike the Lindgren case, the ten (10) named Plaintiffs have or had current and ongoing cases pending before the Rhode Island Family Court; each Plaintiff is still a minor; each Plaintiff has a CASA attorney or guardian ad litem acting in their best interest in the Family Court proceedings; the Child Advocate has a right if not a duty to intervene on behalf of each plaintiff if she believes there is a need to do so; and the federal court proceedings or a ruling thereon would interfere with the ongoing Family Court proceedings. Moreover, this case is before the Court in the procedural posture of a motion to dismiss the complaint under F.R.C.P. 12(b)(1) rather than a twelve (12) year old consent decree. Based on the foregoing, the Lindgren decision should not be used as a sword to defeat the instant motion to dismiss this Complaint.
e. Cases from Other Jurisdictions Defendants direct this Court to the decisions of the Tenth and Eleventh Circuits as well as the District Courts of Nebraska and California in support of Younger abstention. See 31 Foster Children, supra., JB. v. Valdez, supra., Carson P., supra., Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185, 1203-1207(N.D.Calif. 2004). Both 31 Foster Children and Carson P. involved the same class of plaintiff children, abused or neglected children in state foster care, the same defendants, the state’s governor and child welfare agency and the same legal counsel for plaintiffs, Children’s Rights. These federal courts acknowledged the duties and responsibilities of their individual family/juvenile courts to
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abused or neglected children and explained, in practical and real terms, how the plaintiffs’ lawsuit would interfere with the day to day responsibility and authority of the state court in the ongoing children’s cases. The Tenth Circuit and the District Court for the Northern District of California performed similar analysis for lawsuits filed by disabled children in state custody and found that Younger precluded the lawsuit in light of the children’s pending state court cases. See J.B.v. Valdez, supra. and Laurie Q., supra.
Although addressing a different group of plaintiffs, mentally and developmentally disabled children in state custody, the Tenth Circuit in J.B. v. Valdez, 186 F.3d 1280, 1291-1294 (10th Cir. 1999) abstained from entertaining a lawsuit seeking to structural reform New Mexico’s system for treating children in custody who suffered from mental or developmental disabilities. The Tenth Circuit found that given the New Mexico Children’s Court’s review of the child’s case, at a minimum biannual, and its ability to modify the child’s disposition constituted an ongoing interference. The Tenth Circuit further reasoned that the federal action would interfere with the Children’s Court proceedings for the children as it could fundamentally change the dispositions and have the federal court sit in a position of oversight of the state court. Id. at 1291-1292. Having found the three-part test of Younger had been satisfied, the Tenth Circuit found abstention was appropriate.
Plaintiffs previously identified federal lawsuits filed on behalf of abused or neglected children alleging systemic deficiencies in state child welfare system where federal court have declined to abstain under Younger. It was argued in these suits that Younger abstention was not appropriate because the lawsuit and requested remedy were
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directed at the executive branch of state government. However, there exist factual differences between the Rhode Island Family Court and their respective state court to render the persuasive value of their decisions suspect.
In Kenny A. v. Perdue, 218 F.R.D. 277, 285 (N.D.Ga.2003), a case relied on by Plaintiffs, the District Court for the Northern District of Georgia found that the state defendants waived their right to raise Younger abstention because they removed the lawsuit from state to federal court. Despite finding waiver, the District Court went on to perform a cursory review of the doctrine and find it would not bar the federal suit proceeding. The present case is distinguishable from Kenney A. because: (1) in Georgia, “once the juvenile court grants legal custody of a child to DFCS, the Court is powerless to order DFCS to give physical custody of the child to a particular foster parent or otherwise restrict the actual placement of the child”, 218 F.R.D. at 287 n.6; (2) plaintiffs alleged ineffective representation for the children due to being overburdened, Id., an issue not raised here; and (3) the District Court blindly accepted plaintiff’s counsels representation that any injunctive relief would only run against the state’s executive branch and would not interfere with the juvenile court’s proceedings, Id. at 286. As to the issue of interference from proposed injunctive relief, the District Court noted that Plaintiff’s request was “somewhat unclear”, asking the Court to issue a permanent injunction “enforcing a long list of alleged constitutional and statutory rights”; however, Defendants “did not attempt to identify specific remedies that would interfere with state court proceedings.” Id. at 286, fn 5. The Court held that “[g]iven the lack of specificity in both plaintiffs’ prayer for relief and the State Defendants’ request for abstention, the Court’s analysis is necessarily limited to the general nature of the relief sought.” Id.
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Taking a page from the District Court in Carson P., the Defendants have attempted to provide this Court with what potential relief may look like that would interfere with the Rhode Island Family Court’s authority and decisions for abused or neglected children under its jurisdiction.
Other cases relied on by plaintiffs are equally distinguishable from the facts of this case and Rhode Island’s Family Court. In LaShawn A. v. Kelly, 990 F.2d 1319 (D.C.Cir. 1993), cert. denied, 510 U.S. 1044 (1994), the D.C. Circuit Court, addressed the issue of and declined to invoke Younger abstention despite it not being raised at the district court. Although it briefly reviewed the general nature of the proceedings of the Family Division of the D.C. Superior Court for abused or neglected children, the LaShawn Court did not address the claims of the individual plaintiff children. Rather, the LaShawn Court explained that abstention was not appropriate because “there was no pending judicial proceeding in the District of Columbia which could have served as an adequate forum for the class of children in this case to present its multifaceted request for broad-based injunctive relief based on the Constitution and on federal and local statutory law.” 990 F.2d at 1323. The Eleventh Circuit in 31 Foster Children found the LaShawn Court’s reasoning unpersuasive when evaluating the third prong of the Younger analysis.15
15 The Eleventh Circuit in 31 Foster Children explained: “[i]n LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1323-24 (D.C.Cir.1993 that the District of Columbia's “juvenile review proceedings did not provide the plaintiffs an adequate opportunity to raise their constitutional challenges. The plaintiffs in that case brought a class action on behalf of children who were in foster care under the supervision of the District of Columbia Department of Human Services, alleging widespread federal constitutional and statutory violations. The D.C. Circuit affirmed the district court's decision that Younger abstention was not warranted after noting that the family court had “explicitly rejected the use of review hearings to adjudge claims requesting broad-based injunctive relief based on
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The District Court for the Eastern District of Michigan in Dwayne B. v.
Granholm, 207 WL 1140920 (E.D.Mich.2007) and the District Court in Tennessee in
Brian A. v. Sundquist, 149 F.Supp.2d 941, 957 (M.D.Tn.2000) relied on the LaShawn A.
reasoning that the states’ juvenile courts were not “more appropriate vehicles for
adjudicating the claims raised in this putative class action” given the “multifaceted
request for broad based relied”. These cases do not provide a persuasive analysis nor are
they relevant to this suit in light of the authority and active role of the Rhode Island
Family Court on the issues of placement, services and permanency goals for abused or
neglected children.
federal law” in In re Brim, No. 489-80 (D.C.Super.Ct. July 20, 1984). In the Brim case the family court had denied a motion by two children for injunctive relief against the Department for its alleged mishandling of Social Security disability payments it had collected on the children's behalf and noted that the appropriate forum for such issues is federal court. LaShawn A., 990 F.2d at 1323. The D.C. Circuit therefore rejected Younger abstention because “there was no pending judicial proceeding in the District of Columbia which could have served as an adequate forum for the class of children in this case to present its multifaceted request for broad-based injunctive relief based on the Constitution and on federal and local statutory law.” Id.
The Eleventh Circuit went on to state: “[i]n contrast to the D.C. Circuit, however, in this circuit's Younger decisions, we have not determined whether the broad relief the plaintiffs would prefer is available but instead whether the forum itself is adequate for addressing the claims and providing a sufficient remedy to the individual plaintiffs. In the Luckey case, the plaintiffs sought broad-based injunctive relief to reform Georgia's indigent defense system. Luckey V, 976 F.2d at 676. Although we did not expressly address the third Middlesex factor in our opinion in that case, we did affirm the district court's decision to abstain under Younger. Id. at 679. The decision turned on the fact that the Luckey plaintiffs could have brought their challenges in their individual criminal trials, even though it is obvious that the broad-sweeping remedy they sought was unavailable there. “Equity need not intervene immediately in plaintiffs' state trials. Plaintiffs have an adequate remedy at law for any ineffective assistance of counsel they may actually receive. Most important, they can present objections to sixth amendment violations at their state trials and in their state appeals.” Luckey v. Harris, 896 F.2d 479, 482 (11th Cir.1989) (“Luckey II ”) (Edmondson, J., dissenting).” 329 F.3d at 1281.
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ii. ABSTENTION BASED ON THE ROOKER-FELDMAN DOCTRINE The Defendants submit that this Court lacks subject matter jurisdiction and, therefore, should abstain from entertaining Plaintiffs’ Complaint based on the RookerFeldman Doctrine. The Rooker-Feldman doctrine precludes “the losing party in state court [from filing] suit in federal court after the state proceedings [have] ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” Coggeshall, 604 F.3d at 664(citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). “Federal courts' application of the Rooker-Feldman doctrine “does not depend on what issues were actually litigated in the state court.” Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009)(citing Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 33 (1st Cir. 2004)) Footnote omitted. Although the named children are not the traditional plaintiffs in Rooker-Feldman cases, they nonetheless are properly characterized as losing parties to a state court action based on the allegations in the Amended Complaint.16 First, the children were represented by legal counsel, who are statutorily required to advocate for their best interest during the Family Court proceedings. As any party, the Plaintiff Children through legal counsel had the opportunity to address the Family Court and advocate for a decision believed to be in their best interest. In their Amended Complaint, it is alleged
16 The State defendants acknowledge that the Tenth Circuit declined to apply the RookerFeldman Doctrine in the Carson P. case as it opined that its plaintiffs did not seek reversal of any prior juvenile court rulings. 240 F.R.D. at 522. The Carson P. Court reasoned that plaintiffs “requested injunction seeks HHS policy changes that may affect the outcome of future juvenile court review proceedings, but this requested relief will not effectively reverse past rulings” and as such was not attempting to appeal a state court judgment. Id. at 522-523.
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that the plaintiff children were harmed and their rights violated by inappropriate placements; placements that were the subject of review and approval by the Family Court. To the extent that the Plaintiffs’ claim that they suffered a constitutional violation because of these inappropriate, judicially supervised placements, it is not unreasonable to characterize Plaintiff Children in such circumstances as “losing parties” for purposes of the Rooker- Feldman Doctrine. The underlying reason for abstaining under RookerFeldman should not be disregarded out of hand because standard civil litigation titles do not translate to Rhode Island Family Court proceedings. There are numerous examples in this case where the plaintiffs are claiming an injury from a Family Court order and are asking this Court to find the Family Court was wrong. Although the plaintiffs frame this Amended Complaint as seeking prospective relief – in order for this Court to grant this remedy it must first find that the Family Court was wrong in its orders and plaintiffs suffered injuries as a result.
By way of example, in the case of David T., the Amended Complaint alleges that his constitutional and statutory rights were violated by failing to provide him with appropriate, least-restrictive placements and by failing to provide necessary and appropriate permanency and adoptive services.” Amended Complaint ¶68. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that the Family Court’s orders approving of DCYF’s placements of David and the Family Court’s findings “that DCYF had documented a reason why return home, adoption or guardianship placement with a relative was not an appropriate permanency goal” were wrong and actually caused David
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T. harm. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
Yet another example, plaintiffs allege that Defendants violated Sam and Tony’s constitutional and statutory rights by failing to provide necessary and appropriate permanency and adoptive services. Amended Complaint ¶33. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that the Family Court’s orders of July 6, 2006 and January 11, 2007 which found that DCYF was making reasonable efforts to finalize a permanency goal of adoption or guardianship for both children were wrong or resulted in harm to the brothers. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
By way of another example, plaintiffs allege that Defendants have violated Danny and Michael’s constitutional and statutory rights by failing to develop and implement an appropriate permanency plan in a timely manner to allow them to secure a permanent home. Amended Complaint ¶95. In seeking prospective relief, Plaintiffs ask this Court to make such a finding. If this Court were to take this action, however, it would be finding that: the Family Court’s findings at November 29, 2006 and March 28, 2007 hearings that DCYF was making reasonable efforts to finalize a permanency goal of adoption or guardianship for both children were wrong or resulted in harm to the brothers. This Court is precluded by the Rooker-Feldman doctrine from taking such action.
Although the Plaintiffs have previously claimed that they do not seek to reverse any Family Court Orders, such representations are disputed by the allegations of inappropriate placements, languishing without a prospect of permanency and lack of
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services set forth in the Amended Complaint and the terms of the orders and decrees of the Family Court either directly or through approval of the case plan, approving specific placements and services to Plaintiff Children. It is their own characterizations in the Amended Complaint that make the plaintiff children “losing parties” to a state court action before this Court and by requesting for a declaration that they have suffered constitutional wrongs from placements, services and lack of permanency they seek to contest state court orders. Through the allegations in the Amended Complaint and the request for declaratory relief, the plaintiff children should be precluded from pursuing his suit under the Rooker-Feldman.
Wherefore, the Defendants submit that this Court should abstain and dismiss this case based on the Rooker-Feldman Doctrine.
B. THE FEDERAL COURT SHOULD GRANT DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) AS NO PRIVATE RIGHT OF ACTION EXISTS
The provisions of the AACWA cited by Plaintiffs do not create private enforceable rights and, therefore, should be dismissed under Rule 12(b)(6). Plaintiffs claim that the Defendants violated the rights conferred upon them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§621-629(i), 670-679(b) and its regulations promulgated under the Code of Federal Regulations (hereinafter referred to as “AACWA”). However, Plaintiffs mischaracterize “benefits” and “interests” as a “private right” under the AACWA in order to pursue their claims under 42 U.S.C. §1983.
i. AACWA The federal statutory provision that plaintiffs bring their claims under is the
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AACWA. The AACWA was enacted under the spending clause. “[It] .. comprises Parts B and E of Title IV of the Social Security Act and is a federal funding statute that establishes a program of payments to states for foster care and adoption assistance. 42 U.S.C. §§620-628, 670-679a.” 31 Foster Children, 329 F.3d at 1270. “A State will be reimbursed by the Federal Government for certain expenses it incurs in administering foster care and adoption services, if it submits a plan for approval by the Secretary of Health and Human Services.” Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 1362, 118 L.Ed.2d 1 (1992). “In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Gonzaga University v. Doe, 556 U.S. 273, 279, 122 S.Ct. 2268, 2273, 153 L.Ed.2d 309 (2002)(citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2w 694 (1981)). As it pertains to legislation enacted pursuant to the spending power, the United States Supreme Court has unequivocally stated that “unless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights, federal funding provisions provide no basis for private enforcement by §1983. Gonzaga, 556 U.S. at 279, 122 S.Ct. at 2273.
ii. Seeking to enforce the AACWA under 42 U.S.C. §1983 “Not all violations of federal law give rise to §1983: ‘[the] Plaintiff must the assert the violation of a federal right, not merely a violation of federal law.’” Rio Grande Community Health Center, Inc .v Rullan, 397 F.3d 56, 73 (1st Cir. 2005)(citing Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). Rather, the
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right alleged must be “’unambiguously conferred’ by the statutory provision.” Rio Grande, 397 F.3d at 72-73.
The United States Supreme Court established a “three part test to act as guidance in determining whether a provision creates a ‘right’ that is enforceable under §1983.” Id. at 73. The Blessing test requires a plaintiff to demonstrate “three principal factors [to] determine whether a statutory provision creates a privately enforceable right: (1) whether the plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff's asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation on the State.” Blessing, 520 U.S. 329, 329-330, 117 S.Ct. 1353, 1354, 137 L.Ed.2d 569 (1997). This test is a guide as congressional intent is the ultimate inquiry. Rio Grande, 397 F.3d at 73.
The United States Supreme Court “tightened up” the Blessing testing in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Id.
iii. Evaluating the Existence of Enforceable Rights under Gonzaga.
The United States Supreme Court “did not precisely follow the Blessing test [in Gonzaga] but, rather, relied on several slightly different factors in determining whether a right existed: whether the provision contains ‘rights-creating language,’ whether the provision had an aggregate as opposed to an individualized focus, and the other sorts of enforcement provisions that Congress has provided for.” Id.
In Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) the Supreme Court provided applied the Blessing test to determine whether a federal statutory spending provision created a private right of action. In Gonzaga, John
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Doe, a former undergraduate of Gonzaga University, needed an affidavit of good moral
character from a dean of the school as a prerequisite for a teaching position at a
Washington public school. 536 U.S. at 277, 122 S.Ct. at 2272. Gonzaga University
declined to provide this attestation and in fact contacted the Washington public school
system and discussed its reasons for its position. Id. Doe filed a lawsuit alleging state
tort and contract claims, but also a claim under the Family Educational Rights and
Privacy Act of 1974 (“FERPA”). Id. The Washington Court of Appeals reversed a jury
verdict in favor of Doe on the FERPA claim; in so doing it found that FERPA did not
create individual rights and was not enforceable under §1983. 536 U.S. at 278, 122 S.Ct.
at 2272. On appeal the Washington Supreme Court disagreed and held that FERPA’s
nondisclosure provision provided a federal right enforceable under §1983. Id.
The United States Supreme Court explained: “Congress enacted FERPA under its
spending power to condition the receipt of federal funds on certain requirements relating
to the access and disclosure of student educational records. The Act directs the Secretary
of Education to withhold federal funds from any public or private ‘educational agency or
institution’ that fails to comply with these conditions.” 536 U.S. at 278, 122 S.Ct. at
2272-2273.
In holding that FERPA does not create a right enforceable under §1983, the Supreme Court explained that the act lacks “ rights-creating” language critical to showing congressional intent to create new rights. Instead, the act speaks only to the Secretary of Education, directing him to withhold funds if the prohibited practice exists. Gonzaga, 536 U.S. at 287, 122 S.Ct. at 2277. The Court contrasted FERPA's language that “ [n]o funds shall be made available,” with the individually focused language of Titles VI and IX, which mandate that “ [n]o person ... shall ... be subjected to discrimination,” statutes that do create enforceable rights, see Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Court concluded in Gonzaga that the focus of FERPA is “ two steps removed from the interests of individual students and parents.” 536
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U.S. at 287, 122 S.Ct. at 2277. Instead of creating an enforceable duty on the part of the school, the act only imposed a duty on the part of the federal government-the duty to withhold funds.
A second reason the Supreme Court gave in Gonzaga for concluding that FERPA does not create enforceable rights is that its nondisclosure provisions speak only in terms of institutional policy and practice, not about “ individual instances of disclosure.” Id. at 288, 122 S.Ct. at 2278. The provisions therefore have an aggregate focus, instead of a concern for “ whether the needs of any particular person have been satisfied.” Id. (citation omitted). Also thought significant is the fact that institutions can avoid funding termination under FERPA by substantial compliance with the act's requirements; compliance in every case is not necessary to avoid loss of funding. Id.
Finally, the Supreme Court considered in Gonzaga the mechanism that Congress chose to provide for enforcing the provisions of FERPA. The act expressly authorizes the Secretary of Education to “ deal with violations” of it and to establish a review board for investigating and adjudicating such violations. 20 U.S.C. §1232G(f). The Secretary's regulations create an office to act as a review board, and students can file individual written complaints with that office. This review mechanism, the Court concluded, evidences a congressional intent to avoid the multiple interpretations of FERPA that might arise if the act created enforceable individual rights. Gonzaga, 536 U.S. at 289-90, 122 S.Ct. at 2278-79.
31 Foster Children, 329 F.3d at 1269-1270.
In evaluating claims brought by similar plaintiff children brought under the
AACWA, the Eleventh Circuit in 31 Foster Children stated that the lesson it was taking
from Gonzaga was:
… to look at the text and structure of a statute in order to determine if it unambiguously provides enforceable rights. If the text and structure “ provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.” Id. at 286, 122 S.Ct. at 2277. If they provide some indication that Congress may have intended to create individual rights, and some indication it may not have, that means Congress has not spoken with the requisite “ clear voice.” Ambiguity precludes enforceable rights. Id. at 280, 122 S.Ct. at 2273. The first Blessing requirement, which is what Gonzaga addressed, is that Congress must have intended that the provision in question benefit the plaintiff. Factors to consider in determining if it did include whether the statute: (1) contains “ rights-creating” language that is individually focused; (2)
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addresses the needs of individual persons being satisfied instead of having a systemwide or aggregate focus; and (3) lacks an enforcement mechanism through which an aggrieved individual can obtain review. 31 Foster Children, 329 F.3d at 1270. The Eleventh Circuit provided this degree of analysis to the plaintiff foster children’s claim that Florida’s DCF system violated their rights under §§675(5)(D) and (E) of the AACWP in 31 Foster Children. The Eleventh Circuit held that §§675(5)(D) and (E): did “have the kind of focused-on-the-individual, rights creating language required by Gonzaga” that would create a private right nor did the AACWA contain a mechanism by which aggrieved individuals could enforce its provisions. Id. at 1272.
iv. Suter , Post-Suter and Congress’s Intent Plaintiffs previously argued that Congress has clearly signaled that it intended “State Plan” provisions of the Social Security Act to be privately enforceable in an effort to pursue the claims they assert under the AACWA. In an effort to demonstrate “Congressional intent,” Plaintiffs referred Judge Lagueux to the circumstances surrounding the United State Supreme Court’s decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). Defendants submit that the amendments and records that Plaintiffs’ referred to do not demonstrate with a clear voice that Congress intended the provisions of the AACWA to create private individual rights that are enforceable under 42 U.S.C. §1983. In Suter, the United States Supreme Court ruled that §671(a)(15)17 of the AACWA did not confer enforceable rights to be pursued under 42 U.S.C. §1983. 503
17 As relevant here, §671(a)(15) provides: “ (a) Requisite features of State plan “ In order for a State to be eligible for payments under this part, it shall have a plan
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U.S.347, 363, 1123 S.Ct. 1360, 1370. In so reaching, the Suter Court analyzed §671(a)(15) under Blessing to determine whether “Congress in enacting the Adoption Act unambiguously conferred upon the child beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child from being removed from his home, and once removed to reunify the child with his family.” Suter, 503 U.S. at 357, 112 S.Ct. 1360.” The Suter Court found that § 671(a)(15) did not unambiguously confer an enforceable right on individual children within the child welfare system because only “a rather generalized duty” was imposed upon the state “to be enforced not by private individuals, but by the Secretary” in the manner set forth in the AACWA. Id. at 363, 112 S.Ct. 1360.
Congress amended the Social Security Act in 1994; specifically mentioning the Suter decision. This amendment, commonly referred to as the “Suter-fix,” did not overrule the Supreme Court’s decision, but rather “only foreclose[d] the refusal to find a federal right enforceable under § 1983 because the statutory provision may be included in a section requiring a State plan or specifying the required contents of such a plan.” Charlie H. v. Whitman, 83 F.Supp2d 476, 484 (D.N.J.2000).
Defendants disagree with Plaintiffs prior argument that the legislative history of the “Suter fix” “makes it clear that Congress intended the provisions of AACWA (other
approved by the Secretary which“ (3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them; “ (15) effective October 1, 1983, provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home....”
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than §671(1a)(15)) and other “State plan” programs to be privately enforceable, and that
the purpose of the “Suter fix” was to confirm the intent” that individuals should have the
right nor to be denied any service or benefit under the AACWA. Plaintiffs failed to
acknowledge that in House Report 102-631 (at 366) Congress also stated that:
This provision is therefore intended to restore to an aggrieved party the right to enforce, as it existed prior to the Suter v. Artist M. decision, the Federal mandates of the State plan titles of the Social Security Act in the Federal courts. This provision is not intended to expand upon enforceable rights created under the State plan titles of the Social Security Act. Nor is this provision intended to define, clarify, or establish standards for determining whether States have made "reasonable efforts" to prevent the need for foster care placement or to reunify children with their families after placement as required by the Adoption Assistance and Child Welfare Act (Title IV-E of the Social Security Act).
Emphasis Added. The end result is that courts are left to conduct an analysis in line with
the standards set forth in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153
L.Ed.2d 309 (2002) and Blessing v. Freestone, 520 U.S. 329, 329, 117 S.Ct. 1353, 1354,
137 L.Ed.2d 569 (1997). Congress granted Plaintiffs no greater rights after the “Suter
fix” amendment; any intimations by Plaintiffs to the contrary are wrong.
v. First Circuit
After Gonzaga18, the First Circuit addressed the issue of whether a federal
18 Prior to Blessing and Gonzaga, the First Circuit issued a decision in Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983) that ruled that an AACWA case plan provision created an enforceable right; however, the primary reason for reaching this decision was driven by the First Circuit’s reasoning that there was an otherwise lack of remedy available to an individual. 719 F.2d at 509-512. Given the body of case law on the precise issue and amendments to the AACWA that have occurred since the First Circuit rendered its decision in Lynch in 1983 precedential value must be greatly questioned. Since Lynch was issued, the United States Supreme Court has issued Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 855 (1997), Wilder v. Virginia Hospital Ass’n., 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), Suter (although limited given the amendment to the AACWA), Gonzaga, Congress’s amendment to 42 U.S.C. § 674 – to
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statutory scheme created enforceable rights for a discrete group or individual in Bryson v.
Shumway, 308 F.3d 79, 88 (1st Cir. 2002); Long Term Care Pharmacy Alliance v.
Ferguson, 362 F.3d 50 (1st Cir. 2004) and Rio Grande, supra. As summarized by the Rio
Grande Court,
In Bryson, we held that a provision, 42 U.S.C. § 1396a(a)(8), stating that state Medicaid plans must provide that medical assistance “shall be furnished with reasonable promptness to all eligible individuals” was enforceable by Medicaid recipients under § 1983. 308 F.3d at 88-89. We utilized the Blessing test and noted that the provision included the benefited class, “eligible individuals,” within its terms, that the provision was not vague, and that the “shall” language was intended to bind the states. Id.
On the other hand, in Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50 (1st Cir.2004), this court held that a different provision, 42 U.S.C. § 1396a(30)(A), was not enforceable by a group of Medicaid providers suing for higher reimbursement rates under § 1983. The provision states that the state plan must provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary ... to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 42 U.S.C. §1396a(a)(30(A). The provision contained no “rights-creating language,” identified no “discrete class of beneficiaries,” focused on the state as a regulated entity rather than any individuals protected, and set out broad, general goals. See Ferguson, 362 F.3d at 56-57.FN11
FN11. In the same opinion, however, the court assumed that a different provision, 42 U.S.C. § 1396a(a)(13)(A) (State plan should provide “for a public process for determination of rates of payment
name a few. Moreover, courts have held that it is only after finding that the statutory language clearly manifests an intent to create and enforceable right does one turn to whether a remedy exists. The questionable value of the Lynch decision may be evidence by the District Court of New Hampshire’s decision in Eric L. v. Bird, 848 F.Supp. 303, 312 (D.N.H. 1994), which held that the “plaintiff enjoy no enforceable rights” to “compel New Hampshire's full implementation of the programs” under 42 U.S.C. § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), because the provision “places no direct obligation on the state”.
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under the plan for hospital services, nursing facility services, and services of intermediate care facilities”), was enforceable under section 1983 because it contained “rights-creating language” and was narrowly written with a discrete class of beneficiaries in mind. Ferguson, 362 F.3d at 56-57.
397 F.3d at 73.
The Rio Grande Court found that plaintiff, a federally qualified health center, had
a cause of action under §1983 against Puerto Rico’s Secretary of Health for wrap around
payments under the Medicaid Act. Id. at 75-76. The Rio Grande Court ruled that the Medicaid provision at issue19 satisfied Gonzaga as it spoke to a “specific, discrete
beneficiary group within the statutory text”, the language was mandatory and had a “clear
focus on the benefited [health centers], rather than the regulated states and it spoke in
individualistic rather than the aggregate terms. 307 F.3d at 74. Defendants submit hat
the AAWCA provisions at issue in this case do not satisfy the same Gonzaga
requirements.
19 The Medicaid provision sought to be enforced by the health center was the wraparound requirement for FQHCs, 42 U.S.C. § 1396a(bb)(5), which reads as follows:
(A) In general In the case of services furnished by a [FQHC] ... pursuant to a contract between the center or clinic and a managed care entity ..., the State plan shall provide for payment to the center or clinic by the State of a supplemental payment equal to the amount (if any) by which the amount determined under [the earlier paragraphs describing the PPS payment system] of this subsection exceeds the amount of the payments provided under the contract. (B) Payment schedule The supplemental payment required under subparagraph (A) shall be made pursuant to a payment schedule agreed to by the State and the [FQHC] ..., but in no case less frequently than every 4 months. 397 F.3d at 74.
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vi. Plaintiffs’ claims
The sections of the AACWA that Plaintiffs seek to enforce do not create personal
rights, as defined as enforceable under 42 U.S.C. §1983. Plaintiffs previously argued that
Congressional intent to provide enforceable rights can be shown in the AACWA sections
they rely on can be inferred from the mere conclusion the word “child” or “children.”
The mere reference to the words “child” or “children” do not by themselves demonstrate
an “individualized focus” under Gonzaga or Congress’s intent to create a federally
enforceable right. In fact, §671(a)(15) contains the word “child” in several places and the
Suter Court nonetheless found that the provision did not create enforceable rights. As the
Gonzaga Court held, “it is rights, not the broader or vaguer “benefits” or “interests,” that
may be enforced under the authority of that section.” Gonzaga, 536 U.S. 273, 283, 122
S.Ct. 2268, 2275. Plaintiffs fail to make this all-important distinction. They simply fail to focus on the phrasing of the sections – a fatal flaw in their analysis20.
Defendants submit that, in line with the First Circuit’s applications of Gonzaga,
the Plaintiffs have failed to demonstrate that Congress spoke with a “clear voice” and
manifested an “unambiguous” intent to confer private enforceable rights in the Sections
20 In 31 Foster Children, the Eleventh Circuit stated that what it took from the Supreme Court’s decision in Gonzaga was “… to look at the text and structure of a statute in order to determine if it unambiguously provides enforceable rights. If the text and structure “ provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.” Id. at 286, 122 S.Ct. at 2277. If they provide some indication that Congress may have intended to create individual rights, and some indication it may not have, that means Congress has not spoken with the requisite “ clear voice.” Ambiguity precludes enforceable rights. Id. at 280, 122 S.Ct. at 2273. The first Blessing requirement, which is what Gonzaga addressed, is that Congress must have intended that the provision in question benefit the plaintiff. Factors to consider in determining if it did include whether the statute: (1) contains “ rights-creating” language that is individually focused; (2) addresses the needs of individual persons being satisfied instead of having a systemwide or aggregate focus; and (3) lacks an enforcement mechanism through which an aggrieved individual can obtain review.”
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of the AACWA that it seeks to enforce in Count Four of the Amended Complaint.
42 U.S.C. §§ 671(a)(1), 672(a)-(c) and 675(4)(A)
Plaintiffs allege a private right of action under §671(a)(1), §672 (although in this
Amended Complaint they limit it to subsections (a) – (c)) and §675(4) (also limited to
subsection (A)).
Under 42 U.S.C. §671(a)(1), the state's federally approved plan must provide “ for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title.” Section 672 outlines the eligibility requirements and circumstances under which the state must pay foster care maintenance payments. “The term ‘ foster care maintenance payments' means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation.” 42 U.S.C. §675(4)(A).
Plaintiffs’ Amended Complaint alleges that the Defendants’ policies, patterns, practices
or customs deprived them of their rights to have “ foster care maintenance payments paid
to the foster parents or foster care providers with whom the child is placed that cover the
actual cost of (and the cost of providing) the Plaintiff child's food, clothing, shelter, daily
supervision, school supplies, reasonable travel to visitation with family, and other
expenses.” Amended Complaint at ¶231. There is a split in authority.21
Analyzing “foster care maintenance payment” provision set forth in the AACWA
under Gonzaga, the District Court for the Northern District of Oklahoma reasoned in DG
21 Two District Courts have found that this provision of the AACWA does not create privately enforceable rights to foster care maintenance payments. See D.G. v. Henry, 594 F.Supp2d 1273, 1278 (N.D.Okla. 2009) and Carson P., 240 F.R.D. at 540-541.Five federal courts have found a privately enforceable right. See C.H. v. Payne, 683 F.Supp.2d 865, 877 (S.D.Ind. 2010); California Alliance of Child & Family Servs. Allenby, 459 F.Supp.2d 919 (N.D. Cal 2006); Kenny A. v. Perdue, 218 F.R.D. 277, 303304 (N.D. Ga. 2003); and Missouri Child Care Assoc. v. Martin, 241 F.Supp.2d 1032 (W.D.Mo 2003).
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v. Henry, 594 F.Supp.2d 1273, 1278 that:
The AACWA requires that State Plans provide for foster care maintenance payments in accordance with § 672 of the act and for adoption assistance in accordance with § 673 of the act [42 U.S.C. § 671(a)(1) ]. The State Plans must provide for periodic review of the amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness. [42 U.S.C. § 671(a)(11) ]. The State Plans must also provide for granting an opportunity for a fair hearing before the state agency to any individual whose claim for benefits available pursuant to the statute is denied or not acted upon with reasonable promptness. [42 U.S.C. § 671(a)(12) ]. Section 672 sets out the requirements for states' foster care maintenance payments programs. [42 U.S.C. §]. The term “foster care maintenance payments” is defined to cover the cost of food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance and reasonable travel to the child's home for visitation. [42 U.S.C. § 675(4)(A) ]. In the case of institutional care, the term includes the reasonable costs of administration and operation of the institution as are necessarily required to provide these items. [Id.]. Definitions of “foster care maintenance payments,” “foster family care,” and “child care institutions” are set forth in 45 C.F.R. § 1355.20(a). Regulations also require periodic reviews by the states of the appropriateness of foster care maintenance payments. [45 C.F.R. § 1356.21(m)(1) ].
However, nowhere in the provisions cited by plaintiff is there language suggesting a clear Congressional intent to confer a private right of action on foster children. Instead the statutes once again set out the requirements of state plans and state foster care maintenance payment programs.
Unlike Gonzaga and Rio Grande, the Defendants submit that 42 U.S.C. §§ 671(a)(1),
672(a)-(c) and 675(4)(A) do not (1) contain “ rights-creating” language that is
individually focused; (2) address the needs of individual persons being satisfied instead
of having a system wide or aggregate focus; and (3) lack an enforcement mechanism
through which an aggrieved individual can obtain review.22 The provision speaks in the
22 The Carson P. Court analyzed this provision under the three part Blessing test and similarly found that 42 U.S.C. §§ 671(a)(1), 672(a)-(c) and 675(4)(A) did not create enforceable rights. The Carson P. Court reasoned that “[t]he link between increased foster care maintenance payments and the services provided to any particular child “ is far too tenuous” to support the notion that Congress meant to give each and every
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aggregate instead of the individualized; contrary to Rio Grande. The mere mention of the
generalized word “child” does not create a private right for plaintiffs. The provision
provides for the general information that is to be included in a state plan and does not
enunciate a specific formula for arriving at the payment. These provisions do not
manifest a Congressional intent to create privately enforceable rights.
Accordingly, Plaintiffs’ claims brought under 42 U.S.C. §§ 671(a)(1), 672(a)-(c)
and 675(4)(A) should be dismissed under Rule 12(b)(6).
42 U.S.C. §671(a)(10) - (11).
Plaintiffs’ allegation of a private right of action under §671(a)(10)-(11) must fail
under the Gonzaga analysis. Plaintiffs' Amended Complaint alleges the defendants
violated and continue to violate their right “to placement in foster homes or other settings
Nebraska juvenile in foster care a right to have foster care providers paid at a sufficient level.” Id. at 539-540. It went on to hold that Plaintiffs failed to satisfy the second element of the Blessing test as “… the plaintiffs' claims were indistinguishable from the type of claims asserted in [Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 110 S.Ct. 2510 (1990)]. Wilder held that under federal Medicaid statutes and regulations, health care providers had an enforceable right to reimbursement at “ reasonable and adequate rates,” but the statutes and regulations under consideration in Wilder included specific factors to be considered in determining the methods for calculating rates. Wilder, 496 U.S. at 519, 110 S.Ct. 2510 …Suter, decided two years later, noted that the specific statutory and regulatory methods for calculating rates in Wilder supported finding a private right of action for the health care providers. However, no private right of action existed in Suter because §671(a)(15) and its regulations provided no guidance as to how the “ reasonable efforts” required under §671(a)(15) were to be measured.” Id. at 540-541. Applying the Wilder and Suter reasoning to the case before it, the Carson P. Court reasoned that “[w]ith respect to “ foster care maintenance payments,” neither §672 nor the definition of that term in §675(4)(A) provide any language for discerning how rates should be set for paying foster care providers the “ cost” of caring for a foster child, and in the case of institutional care, “‘ the reasonable costs of administration and operation of such institution as are necessarily required’ to care for a foster child.” 42 U.S.C. §675(4)(A). …. [The plaintiffs cite no specific regulations governing the calculation of foster care maintenance payments.] …. [L]ike §671(a)(15), and in accord with the analysis of Suter, the plaintiffs' asserted right to foster care maintenance payments is too “ vague and amorphous” to support a federal right enforceable under §1983.” Id. at 540-541.
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that conform to reasonable professional standards and are subject to a uniformly applied
set of standards.” Amended Complaint, ¶ 231.
42 U.S.C. §671(a)(10) requires federally approved state plans to provide for the “ establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes,” and to provide that “ the standards so established shall be applied by the State to any foster family home or child care institution receiving funds....” 42 U.S.C. § 671(a)(11) requires periodic review of these standards.
§671(a)(10)-(11) do not (1) contain “ rights-creating” language that is individually
focused; (2) address the needs of individual persons being satisfied instead of having a
system wide or aggregate focus; and (3) lack an enforcement mechanism through which
an aggrieved individual can obtain review. These provisions do not possess an
individualized focus but, rather, speak to items to be included in a state plan and not
rights of an individual. The section addresses the aggregate and in a manner that
provides no precise degree of measurement to enforce. See Carson P., 240 F.R.D. at 541542. See also, Charlie H., 83 F.Supp.2d 476, 490 (D.N.J. 2000).23 These provisions do
not manifest a Congressional intent to create privately enforceable rights.
Accordingly, Plaintiffs’ claims brought under 42 U.S.C. §§ 671(a)(10)-(11)
should be dismissed under Rule 12(b)(6).
42 U.S.C. §671(a)(22).
Defendants submit that §671(a)(22) does not create a privately enforceable right.
23 In Charlie H., the District Court of New Jersey, employing the Blessing test, found that §671(a)(10) did not create a privately enforceable right as the alleged right to “placement in foster homes or facilities that conform to nationally recommended professional standards” based upon 42 U.S.C. § 671(a)(10) is too vague and amorphous under the Blessing test to be enforced pursuant § 1983.
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Section 671(a)(22) requires the State to develop and implement standards to ensure that children in foster care placements are provided “ quality services that protect the safety and health of the children.” Carson P. 240 F.R.D. at 542. Plaintiff allege that defendants' policies and practices violate the “ right of each Plaintiff child to services that protect the child's safety and health.” Amended Complaint, ¶ 231. §671(a)(22) does not (1) contain “ rights-creating” language that is individually focused; (2) address the needs of individual persons being satisfied instead of having a system wide or aggregate focus; and (3) lack an enforcement mechanism through which an aggrieved individual can obtain review. The provision clearly speaks in the aggregate instead of possessing an individualized focus. Enforcement is by the Secretary and not an individual recipient. It is abstract in nature, failing to describe standards that it seeks be developed and implemented. It lacks the necessary Congressional intent to be interpreted as enforceable by a private individual or group. Section 671(a)(22) contains no definition or criteria for determining whether the state is providing “ quality services” to the child. The language of §671(a)(10) is too vague and amorphous to support a cause of action under §1983. Whitely, 184 F.Supp.2d at 1164-65. Id. As such, Plaintiffs' claim under §671(a)(22) should be dismissed under Rule 12(b)(6). 42 U.S.C. §§ 671(a)(16) and 675(5)(D)-(E). The Plaintiffs allege that the Defendants policies and practices violate their rights to “timely written case plans containing mandated elements” and “have health and educational records reviewed, updated, and supplied to foster parents or foster care providers with whom the child is placed at the time of placement.” Amended Complaint ¶231. §671(a)(16) and §675(5)(D)-(E) do not state a privately enforceable right.
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42 U.S.C. §671(a)(16) requires that all federally approved state plans provide “ for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provide[ ] for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.” The term “ case plan” means a written document which includes: (A) a description of the type of home or institution in which a child is to be placed and the reasons for that decision; (B) a plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents; (C) to the extent available and accessible, the health and education records of the child; (D) where appropriate, for a child age 16 or over, a written description of the programs and services which will help such child prepare for the transition from foster care to independent living; and (E) in the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship.
***
42 U.S.C. § 675(5)(D) requires that all case review plans include a procedure assuring that a child's health and education record is reviewed, updated, and supplied to the child's foster parent or foster care provider at the time of each placement. 42 U.S.C. § 675(5)(E) requires case review plans to include procedures which acknowledge that in the absence of a compelling reason, a relative placement, or the potential for reunification, petitions to terminate parental rights must be filed under certain circumstances and within certain time frames.
Id. at 542-543.
Section 675 is a definitional section that includes the definitions of “case plan”
(§675(1)) and “case review system” (§675A). §671(a)(16) speaks to the state plan and
not an individual’s rights. Neither 42 U.S.C. §§ 671(a)(16) and 675(5)(D)-(E) read
together or separately (1) contain “ rights-creating” language that is individually focused;
(2) address the needs of individual persons being satisfied instead of having a system
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wide or aggregate focus; and (3) lack an enforcement mechanism through which an
aggrieved individual can obtain review.
In support of their position that these sections create enforceable private rights,
Plaintiffs previously highlighted every place where the term “child” was cited to
demonstrate that they are intended beneficiaries. As previously stated, the mere mention
of the word “child” is not sufficient to demonstrate that a private enforceable right exists.
The Gonzaga Court explained:
A court's role in discerning whether personal rights exist in the § 1983 context should therefore not differ from its role in discerning whether personal rights exist in the implied right of action context. Compare Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107-108, n. 4, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (“ [A] claim based on a statutory violation is enforceable under § 1983 only when the statute creates ‘ rights, privileges, or immunities' in the particular plaintiff ” ), with Cannon, supra, at 690, n. 13, 99 S.Ct. 1946 (statute is enforceable under implied right only where Congress “ explicitly conferred a right directly on a class of persons that included the plaintiff in the case” ). Both inquiries simply require a determination as to whether or not Congress intended to confer individual rights upon a class of beneficiaries. Compare Wright, 479 U.S., at 423, 107 S.Ct. 766 (statute must be “ intended to rise to the level of an enforceable right” ), with Alexander v. Sandoval, supra, at 289, 121 S.Ct. 1511 (statute must evince “ congressional intent to create new rights” ); and California v. Sierra Club, supra, at 294, 101 S.Ct. 1775 (“ The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries” (citing Cannon, supra, at 690-693, n. 13, 99 S.Ct. 1946)). Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.
536 U.S. at 285-286, 122 S.Ct. at 2276-2277. Emphasis Added. According to Gonzaga,
the mere mention of the word “child” does not by itself reflect that Congress intended to
grant them individual enforceable rights under §1983.
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Moreover, the Eleventh Circuit’s decision in 31 Foster Children, 329 F.3d 1255
(11th Cir. 2003) that held that sections of §675 did not “have the kind of focused-on-the-
individual, rights creating language required by Gonzaga” that would create a private
right nor did the AACWA contain a mechanism by which aggrieved individuals could
enforce its provisions. 329 F.3d at 1272. Linking 42 U.S.C. §§ 671(a)(16) with the
definitional section (§675) still does not create a private enforceable right by plaintiffs
under §1983.
The decision of the United States District Court for the District of New Jersey in
Charlie H., supra., contradicts the holding in Kenny A, is particularly instructive on this
issue. In Charlie H., the District Court for New Jersey held that §§ 671(a)(16),
622(b)(10)(B)(ii), 671(a)(16) and 675(1) and (5) did not create enforceable rights to a
written case plan or case review system under §1983. Specifically, the Charlie H. Court
reasoned:
42 U.S.C. § 622(b)(10)(B)(ii) provides, in relevant part, that “[e]ach plan for child welfare services under [42 U.S.C. § 622(a)] shall-provide assurances that the State-is operating, to the satisfaction of the Secretary-a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State.” 42 U.S.C. § 671(a)(16) provides, in relevant part, that “[i]n order for a State to be eligible for payments under [42 U.S.C. § 670], it shall have a plan approved by the Secretary which-provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.” Finally, 42 U.S.C. § 675(1) and (5) define, in detail, “case plan” as used in 42 U.S.C. § 671(a)(16) and “case review system” as used in 42 U.S.C. § 622(b)(10)(B)(ii).
* * *
Initially, as noted above and as will be repeated herein, this Court does not sit to oversee New Jersey's child welfare system to determine whether the
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implementation of case plans is “appropriate” or “successful.” See Blessing, 520 U.S. at 341 and 345, 117 S.Ct. 1353. This is especially true where “[w]hether a child has a plan satisfying [each] provision is as individual as each child” and “there is no way to measure the normal or average needs of a child in foster care.” Del A. v. Roemer, 777 F.Supp. 1297, 1309 (E.D.La.1991). Moreover, regardless of the detailed nature of the definitions of “case plan” and “case review system,” the statutory provisions relied upon by Plaintiffs in support of their alleged right “to timely written case plans that contain mandate elements and to the implementation and review of these plans” are not so unambiguous so as to confer upon Plaintiffs a right enforceable under § 1983. See Eric L. v. Bird, 848 F.Supp. 303, 312 (D.N.H.1994) (holding that “plaintiff enjoy no enforceable rights” to “compel New Hampshire's full implementation of the programs” under 42 U.S.C. § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), because the provision “places no direct obligation on the state”); Baby Neal v. Casey, 821 F.Supp. 320, 328 (E.D.Pa.1993) (holding that the language of § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), “examined in the context of the entire Adoption Act” does not “unambiguously confer an enforceable right on behalf of its beneficiaries under 42 U.S.C. § 1983”); Del A. v. Roemer, 777 F.Supp. 1297, 1308-09 (E.D.La.1991) (holding 42 U.S.C. § 627(a)(2)(B), the predecessor to 42 U.S.C. § 622(b)(10)(B)(ii), and 42 U.S.C. § 671(a)(16)“so vague and amorphous as to evade judicial enforcement” of plaintiffs' claim for “case plans that address specific issues in their placements and care” because “[t]here is no objective benchmark” against which compliance with these provisions can be measured).
Finally, as discussed below in connection with Plaintiffs' MPA claim, both parties have failed to note the important point, which hinders Plaintiffs' claim under 42 U.S.C. § 671(a)(16) with respect to case plans, that Congress specifically examined the numerous State plan elements required under 42 U.S.C. § 671 and determined that only one such required element confers a private right enforceable pursuant to § 1983. Specifically, in 1996, Congress amended 42 U.S.C. § 674 by adding subsection (d) which explicitly provides that “[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court.” 42 U.S.C. § 674(d)(3)(A) (emphasis added). That Congress recently chose to amend 42 U.S.C. § 674 to include a private right of action under § 1983 for a state or other entity's failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983. See Wright v. Roanoke Redevelopment and House. Auth., 479 U.S.
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418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)(noting that a court may look to “other specific evidence from the statute itself” to determine whether §1983 provides a remedial cause of action). Therefore, for this and the other reasons set forth herein, Plaintiffs § 1983 claim to “an enforceable written case plan and a case review system” under 42 U.S.C. § 622(b)(10)(B)(ii), 42 U.S.C. § 671(a)(16), and 42 U.S.C. § 675(1) and (5) and an “enforceable right to implementation of case plan services” is dismissed.
83 F.Supp. at 486-489. The Charlie H. Court ultimately ruled that the plaintiff children
failed to demonstrate that the following sections of the AACWA created private
enforceable rights: §622(b)(10)(B), 671(a)(10), 671(a)(16), 675(1)(E), and 675(5).
Additionally, similarly situated plaintiffs in the case of Olivia Y. v. Barbour, 351
F.Supp.2d 543, 562 (S.D.Miss. 2004) made the same argument that the Eleventh Circuit’s
decision in 31 Foster Children was distinguishable. The United States District Court for
the Southern District of Mississippi rejected Plaintiffs’ attempt to distinguish 31 Foster
Children and ruled that the plaintiff children did not have enforceable rights under
§675(A), (C), (D) or (E), alone or in conjunction with either §671(a)(16) or
§622(b)(10)(B)(ii) (this section was redesignated to §622(b)(8)(A)(ii) in 2006). 351
F.Supp.2d at 562-565. The Olivia Y. Court acknowledged that other courts have reached
different results on these issues but explained that:
Although this court recognizes that there are cases-indeed numerous cases-that have interpreted the provisions under consideration in the case at bar to create rights on the part of children that are enforceable under § 1983, this court, having reviewed the cases on the issues presented, finds that the analysis and conclusions of the courts that have come to the contrary conclusion to be more persuasive, and consistent with the Supreme Court's directive that nothing short of “ an unambiguously conferred right” will support a cause of action under § 1983. See Gonzaga 536 U.S. at 282-83, 122 S.Ct. at 2275.
351 F.Supp.2d at 564-565.
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Accordingly, Plaintiffs' claims under 42 U.S.C.§§671(a)(16) and 675(5)(D)-(E)
should be dismissed under Rule 12(b)(6).
42 U.S.C. §622(b)(8)(A)(ii)-(iii)
The plaintiffs allege a private right of action under 42 U.S.C. §622(b)(8)(A)(ii)-
(iii). The Defendants disagree.
Section 622(b)(8)(A)(ii)-(iii) requires that all federally approved state plans:
(8) provide assurances that the State – (A) is operating, to the satisfaction of the Secretary – (i) a statewide information system from which can be readily determined the status, demographic characteristics, location, and goals for the placement of every child who is (or, within the immediately preceding 12 months, as been) in foster care; (ii) a case review system (as defined by section 675(5) of this title) for each child receiving foster care under the supervision of the State; (iii) a service program designed to help children(I) where safe and appropriate, return to families from which they have been removed; or (II) be placed for adoption, with a legal guardian, or, if adoption or legal guardianship is determined not to be appropriate for a child, in some other planned, permanent living arrangement, which may include a residential educational program.
The Plaintiffs allege that the Defendants policies and practices violate their rights to “a
case review system to ensure the implementation of “case plans” and “to services to
facilitate the child’s return to his family home or a permanent placement of the child”.
Amended Complaint ¶231.
42 U.S.C. §622(b)(8)(A)(ii)-(iii) does not (1) contain “ rights-creating” language
that is individually focused; (2) address the needs of individual persons being satisfied
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instead of having a systemwide or aggregate focus; and (3) lack an enforcement
mechanism through which an aggrieved individual can obtain review. The individual to
be satisfied by this provision is the Secretary, not the plaintiff children. There is no
defined measurement to gage. The provision has a system wide focus.
In finding that these provisions did not create a privately enforceable right, the
DG Court reasoned:
[t]he case review systems of the State Plans [42 U.S.C. § 622(b)(8)(A)(ii) ] must have a procedure assuring that, in the case of a child who has been in foster care for 15 of the most recent 22 months or has been found by a court of competent jurisdiction to be an abandoned infant, or whose parent has committed murder or voluntary manslaughter of or felony assault upon another child of the parent, or the other parent, the state will file a petition to terminate the parental rights of the child's parents and concurrently to identify, process, and approve a qualified family for an adoption or document reasons why the filing of a petition would be in the best interest of the child. [42 U.S.C. §675(5)(E) ]. The procedure for determining when a petition to terminate parental rights must be filed is set forth in 45 C.F.R. § 1356.21(i).
Section 675(5)(E), much like §§ 675(1) and 675(5)(A), does not manifest an unambiguous intent to confer individual rights. Rather, it is part of a listing of specific elements the State Plans are required to cover. The court finds that AACWA does not create an individual right to sue under § 1983 for a state's failure to comply with this provision.
594 F.Supp.2d at 1278-1279.
Accordingly, Plaintiffs' claims under 42 U.S.C. §622(b)(8)(A)(ii)-(iii) should be
dismissed under Rule 12(b)(6).
42 U.S.C. §622(b)(15)
The plaintiffs allege a private right of action under §622(b)(15). The Defendants
submit that this claim should be dismissed as they do not create an enforceable right
under §1983.
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Section §622(b)(15) requires that all federally approved state plans “describe how the State actively consults with and involves physicians or other appropriate medical professions in (A) assessing the health and well-being of children in foster care under the responsibility of the State; and (B) determining appropriate medical treatment for the children. The Plaintiffs allege that the Defendants policies and practices violate their rights to “services that protect the children’s safety and health”. Amended Complaint ¶231.
§622(b)(15) does not create an individual enforceable right. It once again speaks to the content of the state plan rather than defining a right. It is yet another “yardstick” for the Secretary to use when evaluating a state’s plan that is tied to federal funding. §622(b)(15) does not speak in clear and unambiguous language or and defines the right. There is no individualized focus. The DG Court found that “these provisions set out yet another requirement of the State Plans and describe another required element of the case plans for foster children. There is no clear, unambiguous expression of Congressional intent to confer individual rights.” 594 F.Supp.2d at 1279.
Thus, plaintiffs’ claim under §622(b)(15) should be dismissed under Rule 12(b)(6).
42 U.S.C. §629a(a)(7)-(8) The plaintiffs claim brought under 42 U.S.C. §629a(a)((7)-(8) should be dismissed as the section is definitional in nature and does not create a right enforceable under §1983. Section §629a(a)(7)-(8) states: (a) In general
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As used in this subpart: (7)Time-limited family reunification services A. In general The term “time-limited family reunification services” means the services and activities described in subparagraph (B) that are provided to a child that is removed from the child’s home and placed in a foster family home or a child care institution and to the parents pr primary caregiver of such a child, in order to facilitate the reunification of the child safely and appropriately within a timely fashion, but only during the 15-month period that begins on the date that the child, pursuant to section 675(5)(F) of this title is considered to have entered foster care.
B. Services and activities described The services and activities described in this subparagraph are the following:
(i) Individual, group, and family counseling. (ii) Inpatient, residential, or outpatient substance
abuse treatment services. (iii) Mental health services. (iv) Assistance to address domestic violence. (v) Services designed to provide temporary
child care and therapeutic services for families, including crisis nurseries. (vi) Transportation to or from any of the services and activities described in this subparagraph.
8. Adoption promotion and support services The term “adoption promotion and support services” means services and activities designed to encourage more adoptions out of the foster care system, when adoptions promote the best interests of children, including such activities as pre- and postadoptive services ad activities designed to expedite the adoption process and support adoptive families.
The Plaintiffs allege that the Defendants policies and practices violate their rights 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,” “to planning and services to obtain permanent
placement, including documentation of steps taken to secure permanency” and “services
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to facilitate a child’s return to his family home or the permanent placement of a child.” Amended Complaint ¶ 231.
Section 629a(a)((7)-(8) are definitional provisions and, as such, “alone cannot and do not supply a basis for conferring rights enforceable under §1983”. 31 Foster Children, 329 F.3d at 1271 (citing Gonzaga, 536 U.S. at 280, 122 S.Ct. at 2273). Applying the legal analysis set forth in Gonzaga, 31 Foster Children, Olivia Y. and Charlie H., Plaintiffs claim that the sections it is proceeding under in Count IV create privately enforceable rights must fail. Sections 675 and 629a are definitional sections that cannot by their very nature demonstrate an individualized focus or clear Congressional intent to create privately enforceable rights. Plaintiffs seek to enforce these sections through 42 U.S.C. §622(b)(8)(A)(ii) (as §622(b)(10)(B)(ii) was redesignated in 2006). However, §622(b)(8)(A)(ii) itself does not “unambiguously confer an enforceable right on behalf of its beneficiaries.” Thus, Plaintiffs’ claims brought under §622(b)(8)(A)(ii), §§ 675 and 629a must fail.
Additionally, Plaintiffs’ claims brought under §§ 622 and 672, which detail the type of information that must be included in a state plan, do not vest Plaintiffs with privately enforceable rights. The plain language does not manifest a clear intent by Congress to create individual rights. Moreover Congress’s amendment of 42 U.S.C. § 674 to include a private right of action under §1983 for a state or other entity's failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983.” Charlie H., 83 F.Supp. at 489. Lastly, § 672 may confer an indirect
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benefit to Plaintiffs; however, the language does not manifest an unambiguous intent that Congress intended to create a private enforceable right for Plaintiff Children. Thus, contrary to Plaintiffs’ assertions, §672 does not satisfy the standard set forth in Gonzaga.
Accordingly, Plaintiffs' claims under 42 U.S.C. §629a(a)((7)-(8) should be dismissed under Rule 12(b)(6).
State Plan Based on the controlling law, including Gonzaga and Rio Grande, and for the reasons set forth above, the Plaintiffs have also failed to demonstrate that they have a privately enforceable right under Rhode Island’s State Plan as third party beneficiaries. Wherefore, Defendants pray that Count VI is also dismissed. VII. CONCLUSION “[C]hild welfare and protection is an important state interest, the injunctive relief at issue in this case, if granted, will interfere with the ongoing jurisdiction and proceedings for each plaintiff in the … [Rhode Island Family Court], and that court provides an adequate opportunity to raise the federal claims asserted in this action.” Foreman, 240 F.R.D. at 532. Thus, the Younger Doctrine compels abstention and a dismissal of this case. Additionally, the relief requested actually places this Court in a position of reviewing and reversing state Family Court decisions and orders addressing the named plaintiff children. Thus, the Rooker-Feldman Doctrine compels abstention and a dismissal of this case. Moreover, the claims of Deanna H., Caesar S., Michael B. and Sam and Tony M are clearly moot. The provisions of the AACWA asserted in the Amended Complaint do not confer private rights of action enforceable under 42 U.S.C. §1983.
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Wherefore, the Defendants pray that this Court grant their motion to dismiss.
Respectfully submitted DEFENDANTS By their Attorney,
PATRICK C. LYNCH ATTORNEY GENERAL
/s/ James R. Lee JAMES R. LEE (4305) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
/s/ Brenda D. Baum BRENDA D. BAUM (5184) Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903 Tel: (401) 274-4400 ext. 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
On Behalf of PATRICIA MARTINEZ, in her Official Capacity as Director of the Department of Children, Youth and Families
/s/ Kevin Aucoin KEVIN AUCOIN (3019) Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903 Tel: (401) 528-3579 Fax: (401) 525-3566 Kevin.Aucoin@dcyf.ri.gov
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CERTIFICATION I hereby certify that I have electronically mailed the foregoing document on this 1st day of November 2010 to the attorney(s) of record listed below: John William Dineen, Esq. jwdineen1@yahoo.com Jametta O. Alston, Esq. jalston@gw.doa.state.ri.us Susan Lambiase slambiase@childrensrights.org Vernon Winters vern.winters@weil.com Marcia Robinson Lowry mlowry@childrensrights.org
/s/ Brenda D. Baum
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 Case 1:07-cv-00241-ML -LDA Document 101 Filed 07/20/11 Page 1 of 57 PageID #: 2263

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

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; 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.

C.A. No. 07-241-ML

LINCOLN D. CHAFEE, in his official capacity as Governor of the State of Rhode Island; STEVEN M. COSTANTINO, in his official capacity as Secretary of the Executive Office of Health and Human Services; and KEVIN J. AUCOIN,1 in his official capacity as Acting Director of the Department of Children, Youth and Families,
Defendants.

MEMORANDUM AND ORDER I. Introduction The plaintiffs in this litigation are, or were, at the inception of this case, ten minor children who had been taken into the legal custody of the Rhode Island Department of Children, Youth and Families (“DCYF”) because of a report or suspicion of abuse or neglect. The case, which was initiated by “Next Friends” on behalf of the plaintiffs, is intended as a class action suit for “all
1
On June 29, 2001, Janice E. DeFrances was confirmed as the new Director of the Department of Children, Youth and Families.
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children who are or will be in the legal custody of the [DCYF] due to a report or suspicion of abuse or neglect.”2 Amended Complaint ¶ 11. Generally, the proposed class action seeks to “compel Defendants - the Governor of the State of Rhode Island, the Secretary of the Executive Office of Health and Human Services [EOHHS], and the Director of the [DCYF] - to meet their legal obligations to care for and protect Rhode Island’s abused and neglected children in state custody by reforming the State’s dysfunctional child welfare system.” Amended Complaint ¶ 7.
The defendants first sought dismissal of the case, inter alia, on the ground that the plaintiffs’ “Next Friends” lacked standing to represent them in this litigation. That motion was granted and the case was dismissed. Sam M., et al. v. Carcieri, 610 F. Supp. 2d 171, 173 (D.R.I. 2009). The plaintiffs appealed the dismissal. The First Circuit Court of Appeals reversed the order dismissing the amended complaint and remanded the case with directions to reinstate the complaint and to allow the “Next Friends” to proceed on behalf of the children. Sam M. v. Carcieri, 608 F.3d 77, 94 (1st Cir. 2010).
At this time, the case is before the Court on the defendants’ second motion to dismiss the amended complaint for (1) lack of
2
According to the plaintiffs, “[a]s of January 2007, approximately 3,000 children were in DCYF legal custody for foster care services due to reported or substantiated allegations of abuse or neglect.” Amended Complaint ¶ 11.
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subject matter jurisdiction, pursuant to Federal Rule 12(b)(1) of the Federal Rules of Civil Procedure, and (2) failure to state a claim upon which relief can be granted, pursuant to Federal Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed hereinafter, the defendants’ motion is GRANTED, in part, and DENIED, in part.
II. Procedural History On June 28, 2007, the “Next Friends” filed a complaint on behalf of the ten named minor plaintiffs. An amended complaint was filed on September 7, 2007. On October 2, 2007, the defendants filed a motion to dismiss the amended complaint. Specifically, the defendants argued that (1) the “Next Friends” lacked standing; (2) pursuant to Younger and Rooker-Feldman doctrines, the Court should abstain from rendering a decision that would invade the province of the Rhode Island Family Court; (3) the plaintiffs did not have a private right of action under the Adoption Assistance and Child Welfare Act (“AACWA”) of 1980, 42 U.S.C. §§ 621 et seq., 670 et seq.; and (4) the claims of three of the named plaintiffs had become moot because they had been adopted and were no longer in DCYF custody. The presiding judge3 heard oral argument on the defendants’ motion on January 16, 2008. He conducted two subsequent
3
Senior Judge Ronald R. Lagueux, who has since recused himself from the case.
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evidentiary hearings on January 23 and 24, 2008 regarding the suitability of the “Next Friends.” Following the hearings, the Court requested that the parties submit post-hearing briefs. On April 29, 2009, the Court granted the defendants’ motion to dismiss, holding that the Child Advocate4 and “Next Friends” had no authority or standing to proceed in the case. Sam M. et al. v. Carcieri, 610 F. Supp. 2d at 184.
The plaintiffs appealed the dismissal of their claims. On June 18, 2010, the First Circuit Court of Appeals reversed and remanded the case with instructions to reinstate the complaint and to allow the three individuals to proceed as the plaintiffs’ “Next Friends.”
On November 1, 2010, the defendants filed the instant motion to dismiss the amended complaint, to which the plaintiffs responded with an objection on January 18, 2011. On February 7, 2011, the defendants filed a reply in further support of their motion.
This Court heard oral argument on May 6, 2011, after which it
4
The Child Advocate, who is appointed by the Governor with the advice and consent of the Senate, acts independently of the DCYF. The Child Advocate’s duties include, inter alia, to insure that each child in protective care is apprised of his or her rights; to review DCYF procedures and placement facilities; and to “[r]ecommend changes in the procedures for dealing with juvenile problems and the systems for providing child care and treatment.” R.I. Gen. Laws § 42-73-7 (1)-(5). To achieve these aims, the Child Advocate is authorized to “[t]ake all possible action including . . . formal legal action” to ensure the legal, civil and special rights of children. R.I. Gen. Laws § 42-73-7 (6).
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took the motion under advisement. III. Factual Background The background and life histories of seven5 of the minor
plaintiffs has been described in some detail in the decision and order of this Court, see Sam M. et al. v. Carcieri, 610 F. Supp. 2d at 174-180. The opinion of the First Circuit Court of Appeals also provides summaries for six of the plaintiffs6, see Sam M. v. Carcieri, 608 F.3d at 84–85. Common to all plaintiffs is that the children were placed into DCYF custody after they had been removed from their families because they had been reported as abused and/or neglected. Since they entered DCYF custody, each of the children has been moved to a succession of foster care placements, many of which, the plaintiffs allege, have been inadequate, unlicensed, inappropriate, and not designed to provide a permanent home. In addition, all of the children are alleged to have suffered abuse during their respective placements and, as a result, several of the children have been institutionalized. As of May 6, 2011, eight of the ten named plaintiffs have been adopted, leaving only two of the
5
Prior to issuance of the Court’s first order dismissing the case, three of the children were legally adopted, “rendering their cases moot.” Sam M. et al. v. Carcieri, 610 F. Supp. 2d at 175.
6
The First Circuit noted that, although ten children were initially named as plaintiffs, four of them were no longer in DCYF custody because they had been adopted. Sam M. v. Carcieri, 608 F.3d at 81 n. 1.
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children, David T. and Danny B.,7 in the legal custody of DCYF. David T., who will reach the age of majority in 2011, currently lives in an out-of-state institution. Danny B., whose brother Michael was adopted in 2008, has been placed in a group home.
IV. The Litigation In bringing this action, the plaintiffs seek to compel the defendants “to meet their legal obligations to care for and protect Rhode Island’s abused and neglected children in state custody by reforming the State’s dysfunctional child welfare system.” Amended Complaint ¶ 7. Some of the alleged shortcomings include: children staying in foster care for years; placement that is dictated by availability, not suitability; inadequate reimbursement rates for foster parents; decline in the numbers of licensed foster homes; unnecessary institutionalization of children; repeated moves between inappropriate DCYF placements; failure to meet federal standards; failures of caseworkers to make monthly visits; abuse in foster care; untenable caseloads of social workers; inadequate supervision; placements in unlicensed foster homes; lengthy application process for foster home licensing; separation from siblings; lack of timely reunification with families; pursuit of reunification with parents when not appropriate; failure to place children who cannot return home for adoption; and failure to meet
7
Pseudonyms are used for all minor plaintiffs. 6

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children’s medical, dental, and mental health needs. See e.g. Amended Complaint ¶¶ 5, 107-112, 115, 116, 129-186.
The amended complaint also alleges that the defendants forfeit millions in federal matching funds by failing to meet their obligations under so-called “State Plans,”8 id. ¶ 211; that they waste limited funds on institutional placements, id. ¶ 213; and that they do not provide adequate foster care maintenance payments to foster parents. Id. ¶ 216-218.
The plaintiffs have put forward six separate causes of action. In Count I, the plaintiffs assert that the State assumes an affirmative duty under the 14th Amendment of the U.S. Constitution to protect a child from harm when it takes the child into foster care custody. The plaintiffs allege that the defendants’ actions and inactions constitute a failure to protect the plaintiffs from harm. The plaintiffs specify their substantive due process rights to include, inter alia, the right to a living environment that protects their physical, mental, and emotional safety and well-being; and the right to safe and secure foster care placement, appropriate monitoring, supervision, planning, and other
8
Title IV of the Social Security Act provides grants to states for aid and services to needy families with children, including children under foster care, and for child-welfare services. 42 U.S.C. § 601 et seq. In order to qualify for such federal funding, a State is required to develop a State plan that meets Title IV standards and applicable regulations. Lynch v. Dukakis, 719 F.2d 504, 507 (1st Cir. 1983).
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services. In Count II, titled Substantive Due Process under the U.S.
Constitution - State-Created Danger, the plaintiffs allege that they are at a continuing risk of being deprived of their substantive due process rights (1) by being removed from their caretakers and put into placements that pose an imminent risk of harm; or (2) by being returned to their parents when such return poses a risk of harm. The plaintiffs assert that such policy and practice are inconsistent with the exercise of professional judgment and amount to deliberate indifference to the plaintiffs’ liberty and privacy rights in violation of 42 U.S.C. § 1983.
In Count III, the plaintiffs allege that, as a result of the alleged actions and inactions of the defendants, the plaintiffs have been severely harmed and deprived of their liberty interests, privacy interests and “associational rights not to be deprived of a child-parent or a child-sibling family relationship, guaranteed by the First, Ninth, and Fourteenth Amendment.” Amended Complaint ¶ 229.
In Count IV, the plaintiffs allege that the defendants are depriving the plaintiffs of certain rights under the Adoption Assistance and Child Welfare Act (“AACWA”) 9 of 1980, as amended by
9
In general, the AACWA provides for federal reimbursement for certain expenses incurred by the states in administering foster care and adoption services if the State satisfies the requirements of the Act. To participate in the program, a State must submit a
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the Adoption and Safe Families Act of 1997, 42 U.S.C. § 621-629i, 670-679b, including, inter alia, the following rights: timely written case plans; a case review system to ensure implementation; placement in foster homes that conform to reasonable professional standards; the filing of petitions to terminate parental rights; permanent placement for children whose permanency goal is adoption; services to protect children’s safety and health, to facilitate return to the family home, and review of health and educational records; and the payment of foster care maintenance to foster parents that covers food, clothing, shelter, daily supervision, school supplies, reasonable travel to families, and other expenses.10
Count V is a procedural due process claim, in which the plaintiffs assert that the defendants’ alleged actions and inactions cause the plaintiffs to suffer deprivations of federallaw entitlements under the AACWA and U.S. Department of Health and Human Services regulations, as well as state-law entitlements
plan for approval by the Secretary of Health and Human Services (“HHS”) which includes several statutorily imposed requirements. Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456 (D.Neb. 2007).
10
Following the defendants’ motion for dismissal, the plaintiffs withdrew all claims under the AACWA except for: (1) the right to a case plan containing certain information, including childspecific recruitment efforts of steps taken to secure a permanent home for them (42 U.S.C § 671(a)(16)); and (2) the right to adequate foster care maintenance payments (42 U.S.C. §§ 671(a)(1), (a)(11), 672(a)(1), 675(4)(A)). Pltfs.’ Obj. 45 n. 45.
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provided them under Chapter 72 of Title 42 of Rhode Island General Laws.11
Finally, in Count VI, the plaintiffs assert that the defendants have breached their contractual obligations under the Rhode Island State Plans prepared for the U.S. Department of Health and Human Services pursuant to the Social Security Act. In order to establish their right to raise this claim, the plaintiffs suggest that they are the intended third-party beneficiaries to such State Plans.
The plaintiffs’ requested remedies include, inter alia, (1) a declaration by this Court that the defendants’ actions detailed in Counts I through VI are unconstitutional and unlawful; (2) an order permanently enjoining the defendants from subjecting the plaintiffs to practices that violate their rights; and (3) “appropriate remedial relief to ensure defendants’ future compliance with their legal obligations to Plaintiff Children.” Amended Complaint ¶ 239. In addition, the plaintiffs seek to maintain this case as a class action12 pursuant to Federal Rule 23(b)(2) of the Federal Rules of Civil Procedure. The plaintiffs also seek costs and the expenses of
11
Chapter 72 of Title 42 of the Rhode Island General Laws addresses the establishment and responsibilities of DCYF. R.I. Gen. Laws §§ 42-72-1 et seq.
12
Although the motion for class certification was fully briefed in 2007, there is nothing to indicate that the issue was argued before the Court or that the motion was decided.
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the litigation. V. Standard of Review A Court may dismiss a complaint, inter alia, for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Because federal courts are courts of limited jurisdiction, “a court, when confronted with a colorable challenge to its subject-matter jurisdiction, should resolve that question before weighing the merits of a pending action.” Morales Feliciano v. Rullan, 303 F.3d 1, 6 (1st Cir. 2002). The burden of proving federal court jurisdiction is on the party invoking it. Pejepscot Indus. Park, Inc. v. Maine Cent. R. R. Co., 215 F.3d 195, 200 (1st Cir. 2000).
The standard of review for a motion to dismiss a complaint under either subsection of Rule 12(b) is identical. McCloskey v. Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006)(“Although these rulings derive from different subsections of Rule 12(b), . . . our standard of review sounds the same familiar refrain.”); Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico, 189 F.3d 1, 14 n.10 (1st Cir. 1999)(“The standard of review . . . is the same for failure to state a claim and for lack of jurisdiction.”).
A court, in reviewing a motion to dismiss, accepts as true the factual allegations of the complaint and draws all reasonable inferences in favor of the plaintiff. Cook v. Gates, 528 F.3d 42,
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48 (1st Cir. 2008); McCloskey v. Mueller, 446 F.3d at 266 (Plaintiffs’ well-pleaded facts are accepted as true and court “indulge[s] all reasonable inferences to their behoof.”). In order to withstand a motion to dismiss, “a complaint must allege ‘a plausible entitlement to relief.’” ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1967-69, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(A complaint must be dismissed if it fails to state facts sufficient to establish a claim to relief that is “plausible on its face.”))
VI. Discussion A. Mootness Three of the named plaintiffs, Briana, Alexis, and Clare H., were legally adopted on September 24, 2007. Prior to oral argument on the defendants’ first motion to dismiss the complaint, the plaintiffs agreed “to withdraw the claims of . . . Briana, Alexis, and Clare H. – since they have been adopted and are no longer members of the putative class.” Pltfs.’ Obj. Defs.’ First Mot. Dismiss. (Docket No. 35) at 3 n. 2; see Pltfs.’ Obj. Def.’s Mot Dismiss (Docket No. 80) at 67 n. 53 (“Plaintiffs voluntarily withdrew the claims of Deanna’s siblings.”) The presiding judge’s declaration that the adoption rendered the claims of these three
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plaintiffs moot was not appealed by the plaintiffs.13 The First Circuit acknowledged this fact and noted that “after the district court rendered its opinion, Plaintiff Deanna H. was adopted and thus her claims are also moot.” Sam M. v. Carcieri, 608 F.3d at 81 n.1. Since then, four more children have been legally adopted: Sam and Tony M.14, Michael B., and Caesar S., leaving only David T. and Danny B. in the legal custody of DCYF.
The defendants seek dismissal of the claims as they relate to Deanna, Sam, Tony, Michael, and Caesar on the ground that they “no longer satisfy the ‘case or controversy’ threshold requirement of a federal court suit.” Defs.’ Mem. 26. Specifically, the defendants assert that, following the adoptions of the five children, the underlying petitions alleging abuse and neglect were closed and no live case or controversy exists between those plaintiffs and the defendants. The defendants argue that, because the amended complaint seeks only injunctive relief, the five adopted children who are no longer in DCYF custody have no legally cognizable interest in the outcome of the case. Id. at 28.
13
The Court notes that the plaintiffs have sought to amend their complaint to name additional plaintiffs as members of the putative class.
14
Sam and Tony M.’s adoption is subject to a dependency petition involving some continuing supervision and support from DCYF. The plaintiffs conceded at oral argument, however, that the dependency petition involves no allegations of abuse or neglect and that Sam and Tony M. are, by definition, no longer part of the putative class. Hearing Tr. 36:16-37:10 (May 6, 2011).
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The plaintiffs, on their part, take the position that, “despite the fact that they are currently not in DCYF custody,” the five adopted children “belong to a putative class of foster children whose claims are by their very nature transitory” and, therefore, should not be dismissed from this litigation. Pltfs.’s Obj. 71. Specifically, the plaintiffs assert that “it was reasonable to expect, given the temporary nature of foster care, that these five Named Plaintiffs might leave DCYF custody prior to a ruling on class certification,” and that, therefore, an exception applies to the mootness doctrine as it relates to class actions. Id. at 67-68. The plaintiffs also point out that, even if the claims of the adopted children were to be dismissed, the action would survive because David T. and Danny B. are still in DCYF custody. Moreover, the plaintiffs state that they are prepared to file a “supplemental complaint” to add additional named plaintiffs following the resolution of the defendants’ motion. Id. at 67.
Pursuant to Article III of the Constitution, federal courts are restricted to the resolution of actual cases and controversies. U.S. Const. art. III, § 2, cl. 1; Shelby v. Superformance Int’l, Inc., 435 F.3d 42, 45 (1st Cir. 2006); Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001)(“This requirement must be satisfied at each and every stage of the litigation.”). Because “those words limit the business of federal courts to questions presented in an adversary context,” courts are precluded from rendering advisory
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opinions. Overseas Military Sales Corp., Ltd. v. Giralt-Armada, 503 F.3d 12, 16-17 (1st Cir. 2007). A case becomes moot “‘when the issues presented are no longer live or when the parties lack a legally cognizable interest in the outcome.’” Id. at 17 (quoting Cruz v. Farquharson, 252 F.3d at 533). “‘A case is moot and hence not justiciable, if the passage of time has caused it completely to lose its character as a present, live controversy of the kind that must exist if the court is to avoid advisory opinions on abstract propositions of law.’” Thomas R.W., By and Through his next Friends Pamela R. et al. v Mass. Dep’t of Educ., 130 F.3d 477, 479 (1st Cir. 1997)(Disabled student’s graduation from private school and matriculation into public high school rendered student’s claim for on-site services moot)(internal quotation omitted).
As the defendants recognize, they bear the burden of demonstrating that, “after the case’s commencement, intervening events have blotted out the alleged injury and established that the conduct complained of cannot reasonably be expected to recur.” Ramirez v. Sanchez Ramos, 438 F.3d 92, 100 (1st Cir. 2006); see Defs.’ Reply 3.
With respect to class actions, the First Circuit has held that “if no decision on class action certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved,” a putative class action must be dismissed. Cruz v. Farquharson, 252 F.3d at 534. “Only when a class is certified does
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the class acquire a legal status independent of the interest asserted by the named plaintiffs.” Id. The Cruz Court noted that the Third Circuit had taken a more expansive view in holding that “‘[s]o long as a class representative has a live claim at the time he moves for class certification, neither a pending motion nor a certified class action need be dismissed if his individual claim subsequently becomes moot.’” Id. (quoting Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (2d Cir. 2000)). However, because “no such motion was pending when the claims of the named plaintiffs in [the Cruz] case became moot,” the First Circuit stated that it had “no occasion to consider the correctness of the Third Circuit’s singular rule.” Id. 15
In the case now before the Court, the dismissal of the entire proposed class action on the ground of mootness does not arise, as both both parties agree that two of the named plaintiffs are still in DCYF custody and that their claims continue to be viable. With respect to three of the named plaintiffs, their claims were withdrawn voluntarily upon their adoption. Therefore, the question of mootness raised by the defendants relates to only five of the
15
The plaintiffs filed a motion for class certification together with their complaint, to which the defendants responded with an objection. Because Judge Lagueux dismissed the case for lack of standing, there is nothing to indicate that the plaintiffs’ motion was considered. The case has now been remanded for further proceedings and this Court invites the parties to submit new briefs in support of their respective positions, taking into consideration the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v Dukes, 131 S.Ct. 2541, 2011 WL 2437012 (2011).
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named plaintiffs. These five children, who have most recently been adopted while the instant action has been pending, are no longer in DCYF custody and are no longer subject to the State’s allegedly “dysfunctional child welfare system.” The plaintiffs’ amended complaint seeks only injunctive relief for “all children who are or will be in the legal custody of the [DCYF] due to a report or suspicion of abuse or neglect,” a group which no longer includes the five named plaintiffs.
The plaintiffs now urge this Court to follow other courts which have applied a more flexible approach to the mootness doctrine in the class action context. Pltfs.’ Obj. 69-70. No class has yet been certified and the plaintiffs conceded at oral argument that the amended complaint relates only to children who are the subject of abuse or neglect petitions. Hearing Tr. 36:16-22 (May 6, 2011). In other words, with the exception of David T. and Danny B., none of the other plaintiffs are representative of the putative class of children who are the subject of abuse or neglect petitions.
The plaintiffs also suggest that their claims are “inherently transitory” because “it was reasonable to expect, given the temporary nature of foster care, that these five named Plaintiffs might leave DCYF custody prior to a ruling on class certification.” Pltfs.’ Obj. 68. It is undisputed, however, that two of the named plaintiffs, who have asserted identical claims and seek identical relief, are still in DCYF custody. Moreover, the plaintiffs have
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repeatedly stated that they are prepared to seek leave to supplement the amended complaint by adding other plaintiffs to this action. See e.g. Pltfs.’ Obj. 4 n. 3. Therefore, as the plaintiffs rightly point out, a determination that the claims of the adopted plaintiff children are moot is not dispositive. However, because no live controversy exists between the adopted children and the defendants, the Court finds that the claims of these particular plaintiffs have been rendered moot. Therefore, the claims of Deanna H., Sam M., Tony M., Michael B., and Caesar S. are dismissed from the case.
B. Abstention under the Younger Doctrine 1. The Parties’ Positions In their motion to dismiss the amended complaint, the defendants urge this Court to abstain from “rendering a decision that would invade the province of the Rhode Island [Family Court] or its past and future decisions.” Defs.’ Mot. 30. The defendants suggest that to grant the injunctive relief requested by plaintiffs would require this Court to (1) declare that prior decisions by the Family Court violated the plaintiffs’ constitutional rights; (2) enjoin the Family Court from performing its duties of protecting abused and/or neglected children; and (3) oversee the Family Court’s performance with respect to orders issued for the best interest of those children. Defs.’ Mot. 32-33. Generally, the defendants reject the plaintiffs’ contention that the Family Court in Rhode Island has extremely limited authority over abused and/or neglected
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children and that DCYF has the ultimate responsibility over such children. Defs.’ Reply 20. The defendants also point out that, unlike in other states, e.g. Massachusetts, the Family Court in Rhode Island has authority under the Uniform Declaratory Judgment Act to issue a declaratory ruling if sought by the plaintiffs or other children. Id. at 27. Moreover, the defendants maintain that the Child Advocate is required to bring “formal legal action before the Family Court on behalf of an abused and/or neglected child” and that the children’s guardians ad litem or CASA16 attorneys “can bring issues of placement, services, visitation, treatment and welfare before the Family Court at any time.” Id. at 32, 34.
The plaintiffs reject the contention that this case involves issues of comity. Instead, they state that the children challenge only their treatment by the responsible executive agency and have made no allegations against state courts. Pltfs.’ Obj. 21-22. The plaintiffs further argue that (1) any concurrent actions in the Family Court regarding these plaintiffs are not the type of coercive enforcement proceedings that would implicate Younger; (2) the requested relief does not interfere with the state proceedings; and (3) the Family Court proceedings do not satisfy the three Middlesex17
16
Court Appointed Special Advocate.
17
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)(holding that Younger abstention is appropriate in pending state disciplinary proceedings against federal plaintiffs).
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factors required for abstention. Pltfs.’ Obj. 22. The plaintiffs suggest that, by accepting federal funding under the AACWA, “Rhode Island has voluntarily agreed to federal oversight of its child welfare system.” Id. at 23. The plaintiffs also suggest that, although Younger has been extended beyond criminal proceedings, abstention is not appropriate for “‘judicial review of executive action, rather than an enforcement proceeding.’” Id. at 25 (quoting Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 70 (1st Cir. 2005)). Further, the plaintiffs maintain that this litigation seeks to address the alleged harm caused by structural or systemic shortcomings within the DCYF, not by action or inaction of the Family Court. Pltfs.’ Obj. at 30-31.
With respect to the Middlesex factors, the plaintiffs argue that (1) the Family Court proceedings are not “ongoing” within the meaning of Younger; (2) the plaintiff children’s claims do not involve predominately state interests which raise comity concerns; and (3) the periodic reviews conducted by the Family Court do not afford plaintiff children an adequate forum in which to litigate their federal claims. Id. at 37-39.
At oral argument, the plaintiffs clarified that they had not, and would not, request this Court to overrule, amend, modify, or otherwise change any ruling of the Family Court.18 Hearing Tr.
18
As the defendants correctly point out, the plaintiffs’ request for relief as set forth in the Amended Complaint, is very broadly
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40:15-20. Instead, the plaintiffs proposed that the Court issue an order that would provide for “caseload caps at a size that is within professional standards around the country for DCYF caseworkers, adequate training for DCYF caseworkers, . . . a requirement of an increase in the array and type of placements, . . . increasing foster homes, [including] very specialized foster homes, . . . increasing the rate of adoptions,. . . decreasing the number of placements per child . . . decreasing the length of time in foster care. ” Hearing Tr. 41:11-43:20.
2. Abstention Principles As a general rule, federal courts have a “‘virtually unflagging obligation . . . to exercise the jurisdiction given them.’” Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 517 (1st Cir. 2009)(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). The duty to exercise jurisdiction “rests on ‘the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the
styled. In essence, the plaintiffs seek a declaration that the DCYF’s practices - as described in great detail throughout the Amended Complaint - violate the plaintiffs’ rights under the U.S. Constitution and the AACWA. The plaintiffs also request this Court to enjoin the defendants from subjecting the children to such practices and to “ensure [the defendants’] future compliance with their legal obligations” to the plaintiffs. In addition, the plaintiffs seek reasonable costs and expenses of this litigation, “including reasonable attorneys’ fees pursuant to [28 U.S.C. § 1920] and 42 U.S.C. § 1988.” Amended Complaint ¶ 239.
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constitutionally permissible bounds.’” Chico Serv. Station, Inc. v. Sol Puerto Rico, 633 F.3d 20, 29 (1st Cir. 2011)(quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)); New Orleans Pub. Serv., Inc. (NOPSI) v. Council of City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989)(reemphasizing that federal courts “‘cannot abdicate their authority or duty in any case in favor of another jurisdiction.’”)(citation omitted).
However, the Supreme Court has also advised that “federal courts may decline to exercise their jurisdiction, in otherwise ‘exceptional circumstances,’ where denying a federal forum would clearly serve an important countervailing interest, . . . for example, where abstention is warranted by considerations of ‘proper constitutional adjudication,’ ‘ regard for federal-state relations,’ or ‘wise judicial administration.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 1721, 135 L.Ed.2d 1 (1996))(citation omitted). Thus, abstention is permissible in “carefully defined” areas and “remains ‘the exception, not the rule.’”19 NOPSI, 491 U.S. at 359, 109 S.Ct. at 2513, 105 L.Ed.2d
19
A “narrowly construed,” limited exception to Younger, in “extraordinary” circumstances, Malachowski v. City of Keene, 787 F.2d 704, 709 (1986), may warrant federal intervention in state proceedings “brought to harass or in bad faith or to enforce a flagrantly unconstitutional statute.” Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 219 n. 6 (1st Cir. 2004). There is nothing to indicate that this narrow exception to Younger comes into play in this litigation.
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298. Abstention doctrines “call upon federal courts to decline to exercise their properly held jurisdiction in circumstances where the interests of comity and federalism predominate. Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d at 517 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. at 727-28, 116 S.Ct. 1712); Fragoso v. Lopez, 991 F.2d 878, 883 (1st Cir. 1993)(holding that abstention should be “the exception, not the rule.”).
3. Younger Originally, abstention under the Younger doctrine was limited to cases in which “a plaintiff who was defending criminal charges in state court sought to get the federal court to enjoin the ongoing state criminal proceedings.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 68-69 (1st Cir. 2005)(citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669)(1971)). Under Younger, “considerations of federalism and comity demand that a federal court should abstain from asserting jurisdiction, at least as to claims for injunctive or declaratory relief, over a matter that is the subject of pending state criminal proceedings.” Malachowski v. City of Keene, 787 F.2d at 708(holding that Younger principles applied to federal court action brought by parents under § 1983 for alleged violation of their constitutional rights in the course of juvenile delinquency proceedings against their daughter which resulted in the daughter’s release into foster care outside the parents’ custody). Subsequently, Younger was extended to “quasi-criminal (or at
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least ‘coercive’) state civil proceedings - brought by the state as enforcement actions against an individual.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d at 69 (listing cases involving, inter alia, state administrative disciplinary proceedings; state child removal proceedings for alleged child abuse; and state proceedings to recover fraudulently obtained welfare payments); Esso Standard Oil Co. v. Cotto, 389 F.3d at217218 (noting that “Younger extension has been extended to “‘coercive’ civil cases involving the state and to comparable state administrative proceedings that are quasi-judicial in character and implicate important state interests.’”)(citation omitted); MaymoMelendez v. Alvarez-Ramirez, 364 F.3d 27, 31-32, n. 3 (1st Cir. 2004)(listing cases).
The First Circuit acknowledged that “[t]he Supreme Court has expanded the applicability of Younger to many categories of civil proceedings, including a state child custody action.” Malachowski v. City of Keene, 787 F.2d 704, 708 (1986)(holding that Younger principles applied to federal court action brought by parents under § 1983 for alleged violation of their constitutional rights in the course of juvenile delinquency proceedings against their daughter that resulted in the daughter’s release into foster care outside the parents’ custody)(citing Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979)(Younger abstention warranted in application for temporary restraining order sought against child welfare agency
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by parents deprived of custody upon allegations of child abuse.)) The First Circuit explained that, ”whether the [state court] proceedings are characterized as quasi-criminal or as child custody proceedings . . . the propriety of federal interference with them must be judged by Younger standards.” Malachowski v. City of Keene, 787 F.2d at 708. With respect to the constitutional claims raised by the plaintiffs in Malachowski, see supra, the court noted that “the injunctive aspects of the complaint while ‘clothed . . . in the garb of a civil rights action, . . . boil down to a demand for custody of the child.’” Id. at 709 (citation omitted.)
In addition, Younger abstention was deemed appropriate in civil cases involving “situations uniquely in furtherance of the fundamental workings of a state’s judicial system.” Rio Grande, 397 F.3d at 69 (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-433, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)(federal abstention warranted in action filed to enjoin pending state attorney disciplinary proceedings); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1(1987)(challenge by losing party in state proceedings to postjudgment appeal bond implied Younger abstention); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)(Younger applies to injunctive relief sought for civil contempt imposed in state court proceeding)). As noted by the First Circuit, although “[i]t is unclear exactly how far this [latter] rationale extends, . . . it
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is related to the coercion/enforcement rationale.” Rio Grande, 397 F.3d at 69. “[P]roceedings must be coercive, and in most cases, state-initiated, in order to warrant abstention.” GuillemardGinorio v. Contreras-Gomez, 585 F.3d at 522 (listing cases)(explaining that “‘[f]or purposes of Younger abstention, administrative proceedings are “judicial in nature” when they are coercive - i.e., state enforcement proceedings.’”) (citation omitted).
With respect to circumstances involving the fundamental interests of the state’s judicial system, the First Circuit pointed out that, “[e]ven the Supreme Court’s furthest extension of the type of proceedings to which Younger applies . . . involved this sort of coercive contexts.” Rio Grande, 397 F.3d at 69 n. 9. By contrast, “judicial review of executive action, rather than an enforcement proceeding” does not implicate Younger abstention. Id. at 70 (noting that, in NOPSI, the Supreme Court declared that application of Younger to “[s]tate judicial proceeding reviewing legislative or executive action . . . would make a mockery of the rule that only exceptional circumstances” justify abstention.)
A determination of whether abstention under the Younger doctrine is appropriate in a particular case involves application of the three factors established by the Supreme Court in Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Abstention under Younger is
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appropriate when (1) the requested relief would “interfere with . . . an ongoing state judicial proceedings;” (2) such proceedings “implicate important state interests;” and (3) there is “an adequate opportunity in the state proceedings to raise constitutional challenges.” Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007)(citing Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521).
i. Interference with Ongoing Judicial Proceedings The threshold issue in the defendants’ Younger abstention argument is the alleged “interference” with ongoing judicial proceedings in Family Court. At the outset, it is not clear that the instant case is susceptible to such categorization. The cases on which the defendants rely, in their briefs and at oral argument, for the proposition that child custody issues are appropriate actions for Younger consideration are inapposite to the circumstances of this litigation. In McLeod v. State of Maine Dep’t. of Human Serv., 1999 WL 3317123 (D. Me. Nov. 2, 1999), the plaintiff sought a federal injunction against child protective services after the State initiated proceedings against her to terminate her parental rights. In Malachowski v. City of Keene, see supra, the plaintiffs sought federal redress for alleged violations of their constitutional rights after their daughter was removed from their custody in connection with a juvenile delinquency petition instituted against her. In Coggeshall v. Massachusetts Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010), a
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licensed psychologist (together with the father of one of her patients) brought a Section 1983 claim against the Massachusetts Board of Registration of Psychologists, which had previously placed the psychologist on probation for violations of the American Psychological Association’s code of conduct. In McKenna v. Powell, 2010 WL 2474037 (D.R.I. April 28, 2010), the plaintiff sought an injunction against the enforcement of certain provisions of the Rhode Island Workers’ Compensation Act in connection with a workers’s compensation claim brought against him by a former employee. At the time plaintiff McKenna brought suit in federal court, he had already filed appeals in the Workers Compensation Appellate Division and in state court.20
The common denominator of these cases is that they relate to ongoing judicial coercive type proceedings initiated, primarily by the state, against the federal plaintiffs that have resulted in a forced deprivation of a right, e.g., of the custody of their child(ren), or a judgment or disciplinary measure issued against them, e.g. a probationary sentence for a code of conduct violation.
20
The defendants also cite to 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) and Carson P. v. Heineman, 240 F.R.D. 456, 523 (D. Neb. 2007) which refers, inter alia, to 31 Foster Children in deciding the issue of interference with ongoing state proceedings. However, in 31 Foster Children, “the parties agreed” (as did the court) “that the continuing state dependency proceedings involving each of the plaintiffs are ongoing state proceedings for the purposes of Middlesex analysis.” 31 Foster Children, 329 F.3d at 1275.
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As such, they are distinguishable, in part, from the instant litigation, in which the plaintiff children (or the Next Friends, on their behalf) neither seek to restore or obtain custody, nor do they challenge Family Court orders directing the termination of parental rights. However, the plaintiffs do challenge the placement of the children while in DCYF custody and/or other aspects of the plaintiffs’ care. Specifically, the plaintiffs complain of the conditions and circumstances of the plaintiffs’ custody and care once Family Court orders are implemented or executed by the DCYF, and they seek specific measures to change those conditions, e.g. the length of stay in foster care, the number of placements per child, and the rate of adoptions.
The defendants now assert that, with respect to the question of “interference,” any remedy granted to the plaintiffs will necessarily interfere with the Family Court on issues of visitation and placement and will amount to oversight by this Court of Family Court decisions. In particular, the defendants seek to distinguish the circumstances of this litigation from a recent case in Massachusetts in which the federal district court rejected the defendants’ argument for abstention under Younger, in part, because “Massachusetts law greatly restricts the juvenile court’s discretion once a child is placed in DCF’s permanent custody.” Connor B. v . Patrick, – F.Supp.2d –, 2011 WL 31343 at *6 (D. Mass. Jan. 4, 2011). The defendants point out that, in contrast to Massachusetts, where
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DCF has “virtually free rein” regarding the placement and care of children in its custody, subject only to “a petition for review which cannot be filed more than once every six months,” id. at *7, the Family Court in Rhode Island “can address and enter orders of placement, services, visitation and adoption.” Defs.’ Reply at 37. In Rhode Island, at regularly scheduled Family Court review and/or permanency hearings regarding an abused or neglected child, DCYF is required to present a written reunification and/or permanency plan, which may be “approved and/or modified by a justice of the family court and incorporated into the orders of the court, at the discretion of the court.” R.I. Gen. Laws § 40-11-12.2. With respect to children in foster care, the Family Court must conduct a permanency hearing “whenever it deems necessary or desirable, but at least every twelve (12) months.” R.I. Gen. Laws § 40-11-12.1(f).
Pursuant to the Rhode Island Family Court Act, R.I. Gen. Laws §§ 14-1-1 et seq., the Family Court has exclusive original jurisdiction in proceedings concerning abused and neglected children and adoption of children. R.I. Gen. Laws § 14-1-5 (1), (2). Once the Family Court grants DCYF’s petition for involuntary termination of parental rights, DCYF “shall have exclusive right to place [the] child for adoption and to be sole party to give or withhold consent, . . . and [DCYF] is the guardian of said child for all purposes.” Defs.’ Ex. E-48, see also Decree, Defs.’ Ex. E-49 (“[DCYF] is to be the exclusive agency to give or withhold consent for adoption of
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said child . . . DCYF is to be the sole guardian of said child for all purposes.”). However, the Family Court does not thereby surrender jurisdiction over the child. In re Joseph, 420 A.2d 85, 88 (R.I. 1980). Instead, the discretion conferred on an agency as a guardian to the adoption of a child placed in its custody “is not absolute; it remains subject to judicial review by the Family Court,” id., “which may at any time for good cause revoke or modify” the decree. R.I. Gen. Laws § 14-1-34 (a). In the event the Family Court assigns custody of a child to DCYF, “the court shall authorize the provision of suitable treatment, rehabilitation and care for each child in the least restrictive and community-based setting.” R.I. Gen. Laws § 14-1-36.2. The Family Court may also “make any further disposition that it may deem to be for the best interests of the child, except as otherwise provided in this chapter.” R.I. Gen. Laws § 14-1-37.
From the voluminous record submitted by the defendants, it is apparent that the Family Court retains considerable authority and involvement in the placement and care of children who are in the same circumstances as the plaintiffs. In support of their assertion that the Family Court issues orders impacting “placement, services, and visitation,” Defs.’ Reply at 41, the defendants have submitted numerous exhibits documenting, inter alia, the Family Court’s approval of David’s residential placement in 2004 “by express terms or approving the case plan.” Ex. E-36. In November 2005, the
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Family Court then issued a “Permanency Hearing Decree” in which it approved the case plan and ordered DCYF to make a referral to the Case Management Team. Ex. E-39. Following a review in February 2006, the Family Court noted that DCYF was awaiting approval from Massachusetts to place David at a residential facility there. Ex. E41. The process was repeated the following year. In November 2006, the Family Court issued another decree stating, again, that DCYF had made “reasonable efforts to finalize the permanency plan goal of another planned alternative living arrangement.” Ex. E-43. The Family Court noted that David was still at the same residential facility which had no educational component, but that DCYF was seeking to place him at one of two other Massachusetts facilities. Ex. E-75.
On August 21, 2000, David’s guardian ad litem sought a review by the Family Court while David (then age 6) was placed at Butler Hospital, a psychiatric facility for adults and children. The guardian ad litem informed the Family Court that Tanner Hill, David’s prior residential facility, had requested DCYF for some time to seek a more appropriate placement for David. According to the guardian ad litem “[t]his request goes back several months and to date the Department has failed to secure such a placement.” Ex. E53. The Family Court disposition forms reflect that, on August 29, 2000, on September 12, 2000, on September 18, 2000, and again on October 10, 2000, the Family Court ordered a residential review.
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Ex. E-54-57. An “Event Hearing Sheet” dated December 4, 2000 states that David is “showing signs of institutionalization - needs to be moved. Placement ordered as soon as possible. Court finds [illegible] of stable placement necessary.” Ex. E-58. However, based on the allegations in the amended complaint, it appears that David remained at the psychiatric facility for five months because DCYF could provide no other placement. Amended Complaint ¶ 62. In other words, although the Family Court continued to exercise its authority in conducting frequent reviews of David’s case, DCYF was unable to implement the ordered placement which the Family Court deemed necessary and urgent.
It is correct that, because the two remaining named plaintiffs are still in the custody of DYCF, they are subject to the continuing jurisdiction of the Family Court and the petitions for neglect and abuse remain pending. The amended complaint does not seek to appeal any particular decision by the Family Court or to vacate or amend any particular orders or directives the Family Court has issued with respect to the plaintiffs. Instead, the plaintiffs’ amended complaint is directed primarily against the execution and implementation of Family Court orders, as performed by the DCYF.21
21
It is correct, as the defendants point out, that the plaintiffs have styled their request for relief very broadly. However, to withstand a motion to dismiss, the complaint need only “allege ‘a plausible entitlement to relief.’” Thomas v. Rhode Island, 542 F.3d 944 , 948 (1st Cir. 2008)(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-1965 (2007)). “Specific facts are not necessary; the statements need only ‘give
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At oral argument, the plaintiffs stated unequivocally that they do not and will not seek to reverse, amend, modify, or otherwise change any ruling of the Family Court. However, the plaintiffs’s requested relief for, inter alia, a decreased number of placements, increased rate of adoptions, and decreased length of time in foster care, implicate determinations that have been made, and orders that have been issued, by the Family Court.
Not all of the allegations raised in the amended complaint regarding, inter alia, the lack of safe and appropriate placement of children who have been abused and/or neglected automatically implicate a possible constraint on decisions of the Family Court. Rather, the plaintiffs, who do not seek to overturn any particular determination by the Family Court concerning any of the children, seek to ensure that the Family Court’s orders and determinations can be carried out. The proposed remedies of caseload caps and adequate training for DCYF workers, as well as an increase in the array and types of available placements, are not within the province of the Family Court, although they would assist in implementing the Family Court’s orders. With respect to those measures, “the mere possibility of inconsistent results in the future is insufficient to justify Younger abstention.” Rio Grande, 397 F.3d at 71.
the defendants fair notice of what the . . . claim is and the ground upon which it rests.’” Thomas v. Rhode Island, 542 F.3d at 948 (quoting Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)).
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Therefore, this Court is of the opinion that the requisite interference under Younger has not been established in this case with respect to the plaintiffs’ suggested remedy of establishing caseload caps for DCYF workers, providing adequate training to DCYF workers, and increasing the array of placement options.
However, with respect to the requested increase in the rate of adoptions, the decrease in the number of placements per child, as well as the decrease in institutionalization and length of time in foster care, such proceedings and related determinations are subject to the continuing jurisdiction of the Family Court. Any remedy fashioned by this Court would constitute an interference with orders generally issued by the Family Court in consideration of the best interest of the child and would, therefore, implicate abstention under Younger.
2. Important State Interest Although the plaintiffs suggest that their claims “do not involve predominantly state interests which raise comity concerns,” Plfts.’ Mem. 37-38, it has long been established that the State has a compelling interest in ensuring proper care of children, including those in foster care. See e.g., Santosky v. Kramer, 455 U.S. 745, 766-767, 102 S.Ct. 1388, 1401-1402 (1982)(“State has an urgent interest in the welfare of the child . . . the State’s goal is to provide the child with a permanent home.”); Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274 (1968)(“State . . . has an
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independent interest in the well-being of its youth.”); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (1944)(State acting to guard the interest in youth’s well being). Notwithstanding the nation’s interest in all children and the federal assistance programs implemented to support them, the fate and well-being of children in Rhode Island’s foster care system remains primarily a state interest.
3. Adequate Opportunity for Constitutional Challenges The third factor of the Middlesex test to determine whether abstention is warranted under Younger focuses on whether the plaintiffs were afforded “an adequate opportunity in the state proceedings to raise constitutional challenges.” Middlesex Cnty. Ethics Comm. v. Garden State, 457 U.S. at 432, 102 S.Ct. at 2521 (emphasis added). The defendants maintain that the plaintiffs have an adequate opportunity to advance their federal constitutional claims before the Family Court. Defs.’ Reply at 60. They also suggest that the plaintiffs must prove that they could not have obtained a Family Court ruling protecting them from the alleged harms they attribute to DCYF’s shortcomings “either because the ... [Family Court] had no jurisdiction to consider the federal questions raised in this case, had no authority to award a remedy, or because the plaintiffs lacked adequate representation in that forum.” Id. Finally, the defendants point out that the Family Court is vested not only with
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broad powers over matters affecting children, but that it also has the authority to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Id. at 62.
The Family Court is a statutory court of limited jurisdiction. Waldeck v. Piner, 488 A.2d 1218, 1220 (R.I. 1985). As such, its powers “are limited to those expressly conferred upon it by statute; its jurisdiction cannot be extended by implication.” Id. “The Family Court lacks general equitable powers and cannot take action unless specific jurisdictional authority to act can be found in the Family Court Act.” Id.
Pursuant to the Uniform Declaratory Judgment Act (“UDJA”), R.I. Gen. Laws § 9-30-1,22 the Family Court (or the superior court), “upon petition, following such procedure as the court by general or special rules may prescribe, shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” R.I. Gen. Laws § 9-30-1. The purpose of the UDJA is “to settle and afford relief from uncertainty and insecurity
22 R.I. Gen. Laws § 9-30-1 provides: The superior or family court upon petition, following such procedure as the court by general or special rules may prescribe, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
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with respect to rights, status and other legal relations.” Providence Teachers Union v. Napolitano, 690 A.2d 855, 856 (R.I. 1997). The existence of an actual justiciable controversy is a prerequisite to a determination by a court. Id. The Family Court’s decision to grant a remedy under the UDJA is purely discretionary. See R.I. Gen. Laws § 9-30-6 (“The court may refuse to render or enter a declaratory judgment or decree where the judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”)
There is nothing to indicate, however, that, under its statutorily conveyed jurisdiction, the Family Court has the authority to address the shortcomings that the plaintiffs have specifically asserted against the DCYF, which, they allege, have led to violations of their constitutional rights, e.g., lack of licensed foster homes or other appropriate placements, shortage of case workers, unreasonable caseloads, and inadequate training.
The difficulties in addressing the alleged inadequacies of the DCYF system in Family Court proceedings is exemplified in the case of David T. David, now 17 years old, was taken into custody at age 2 when he was removed from his mother due to neglect and abuse. With the exception of one initial placement in a foster home, David has since been placed in shelters, residential facilities and institutions, while his behavior, mental health, and emotional state were notably declining. The voluminous record submitted to this
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Court reflects that David’s case plan, numerous placements, and
visitation schedule were approved and reviewed by the Family Court
on a regular basis. However, oversight by the Family Court could
not ensure that appropriate placement would be made available by
DCYF. For example, although the Family Court promptly conducted
hearings and instructed DCYF repeatedly to find a more appropriate
placement for David in 2000, DCYF was unable to do so for many
months, during which time the six year old child was kept in a
psychiatric institution. In other words, while the Family Court had
the jurisdiction to consider David’s plight and ordered an
appropriate remedy, DCYF fell short in implementing that remedy.
In sum, while the plaintiffs do not appear statutorily
precluded from bringing claims in Family Court that may amount to
constitutional violations, it does not appear, under the alleged
circumstances of this case, that the Family Court would present an
adequate forum to address those claims and to afford complete relief to the plaintiff children.23
23
The defendants suggest that “[t]he Family Court is also empowered to address issues implicating constitutional dimensions,” see Defs.’ Mem. at 63. However, the two cases on which they rely for support are not remotely comparable to the circumstances of this case. In re Destiny D., the Rhode Island Supreme Court held that, in a termination of parental rights proceeding, the Family Court was not precluded under the Fifth Amendment from considering the mother’s prior statements to police or from considering her refusal to testify. In re Destiny D., 922 A.2d 168, 173-74 (R.I. 2007). In re Stephanie B., the Supreme Court held that Family Court orders enjoining a (non-party) private mental health hospital from discharging two juveniles and admitting one juvenile - all in temporary custody of DCFY - violated the hospital’s due process
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The Court concludes that, because the present case is not directed against any particular proceedings that may be pending in Family Court regarding the remaining plaintiffs and, although the welfare of children in foster care is an important state interest, in light of the difficulties in adequately raising the plaintiffs’ claims in Family Court proceedings, abstention under Younger is not indicated with respect to the requested remedies of caseload caps for DCYF workers, adequate training of DCYF workers, and increase in the array of placement options. However, since increasing the number of adoptions, and decreasing the rate of institutionalization, the number of placements per child, and the length of time in foster care depend on determinations and orders within the jurisdiction of the Family Court, abstention under Younger is appropriate with respect to those requested remedies.
C. Abstention under the Rooker-Feldman Doctrine The defendants also submit that this suit is barred by the Rooker-Feldman doctrine. Specifically, the defendants maintain that, although the plaintiffs are not asking this Court to review any Family Court proceedings, they seek a finding that they were, inter alia, placed into unstable and inappropriate placements pursuant to reviews, permanency hearings, or orders by the Family Court. Defs.’ Mot. Dismiss 43. The defendants suggest that “[t]o the extent the Plaintiffs claim that they suffered a constitutional
rights. In re Stephanie B., 826 A.2d 985 (R.I. 2003). 40

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violation because of these inappropriate, judicially supervised placements, it is not unreasonable to characterize Plaintiff Children in such circumstances as ‘losing parties’ for purposes of the Rooker-Feldman Doctrine.” Id. at 45.
In response, the plaintiffs point out that the plaintiff children “have never before been a party - let alone a losing party - to an action in the Family Court or any other related state court proceeding.” Pltfs.’ Obj. 42. Moreover, the plaintiffs assert that they only seek review of defendants’ executive actions and “do not seek to overturn the Family Court orders,” to which the defendants refer in their motion.
Under the Rooker-Feldman doctrine, a federal district court lacks subject matter “jurisdiction over ‘federal complaints . . . [that] essentially invite[] federal courts of first instance to review and reverse unfavorable state-court judgments.’” Federacion de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 20 (1st Cir. 2005)(quoting Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 283, 125 S. Ct. 1516, 1521, 161 L.Ed.2d 454 (2005)). In Exxon Mobil, the United States Supreme Court limited application of the Rooker-Feldman doctrine to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at
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284, 125 S. Ct. 1521-22. In the case before the Court, the plaintiffs’ requested remedy
is limited to injunctive and prospective relief to address what they allege to be systemic shortcomings of the Rhode Island child welfare system. There is nothing to indicate that the plaintiffs in any way seek to reverse or modify existing judgments rendered by the Family Court or that the relief sought would serve to reverse such judgments. Amended Complaint ¶ 239.
To characterize the plaintiff children as “losing parties” in prior state proceeding would constitute an expansion of the Rooker Feldman doctrine that is neither indicated by case law precedent nor warranted under the circumstances of this case. Therefore, this Court is of the opinion that the doctrine is inapplicable and does not serve as a basis for abstention.
D. Individual Rights under the AACWA The Adoption Assistance Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 621 et seq., §§ 670 et seq. constitute Parts B and E of Title IV of the Social Security Act. The AACWA is a federal program that provides funding to a State for child welfare, foster care, and adoption assistance, provided the State has fashioned a State plan that meets certain requirements specified in the AACWA and that is approved by the Secretary of Health and Human Services. Under the AACWA, a State “will be reimbursed for a percentage of foster care and
42

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adoption assistance payments when the State satisfies the requirements of the Act.” Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 1362, 118 L.Ed.2d 1 (1992).
In their objection to the defendants’ motion to dismiss the complaint, the plaintiffs voluntarily limit their claims under the AACWA to the following: “(i) the right to a case plan containing documentation, including child specific recruitment efforts, of steps taken to secure a permanent home for them, as provided in 42 U.S.C. § 671(a)(16); and (ii) the right to adequate foster care maintenance payments as provided in 42 U.S.C. §§ 671(a)(1), (a)(11), 672(a)(1), and 675(4)(A).” Pltfs.’ Obj. 45 n. 45. With respect to the latter, counsel for the plaintiffs stated at oral argument that maintenance payments to foster parents are made from a combination of state and federal monies, but that the State sets the rates for such payments. The plaintiffs also expressed that they seek an order from this Court requiring the State to abide by the AACWA and to increase foster care maintenance rates.24
In their motion to dismiss, the defendants generally assert that the provisions of the AACWA under which the plaintiffs bring
24
The Court notes that, in their amended complaint, the plaintiffs do not request or propose specific remedies for the alleged violation of the two AACWA provisions or for any of their other claims. Instead, they seek to “[p]ermanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights” and they ask this Court to order “appropriate remedial relief to ensure Defendants’ future compliance with their legal obligations to Plaintiff Children.” Amended Complaint ¶ 239.
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their claims do not create private enforceable rights but, instead,
“speak to items to be included in a state plan and not rights of an
individual.” Defs.’ Reply 46. Regarding the foster care
maintenance payment provision, 42 U.S.C. §§ 671(a)(1), 672(a)-(c),
and 675(4)(A), the defendants argue that the provisions do not
“manifest a Congressional intent to create privately enforceable
rights” because they only set forth general information to be
included in a State plan and do not “enunciate a specific formula for arriving at the payment.” Defs.’ Mem. Mot. Dismiss 90.25
With respect to the plaintiffs’ asserted rights to case plans
containing specific documentation regarding recruitment plans and
permanent placements, the defendants maintain that the AACWA
provisions do not “(1) contain ‘rights-creating’ language that is
individually focused or (2) address the needs of individual persons.” Defs.’ Reply 46. 26
Plaintiff’s cause of action is brought pursuant to 42 U.S.C. §
1983. Section 1983 “provides a remedy for deprivations of rights
25
The defendants acknowledge that a majority of courts that have addressed this issue have concluded that the AACWA creates a privately enforceable right to foster care maintenance payments. Defs.’ Mem. Mot. Dismiss 88 n. 21.
26
The defendants acknowledge that the First Circuit concluded in Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983), that the case plan provision is enforceable under 42 U.S.C. § 1983, based on the rationale that the provision, otherwise, lacked a remedy available to the individual. Defs.’ Reply 47-48. The defendants suggest, however, that Lynch is of questionable precedential value, given controlling case law that has developed since. Id.
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secured by the Constitution and laws of the United States when that deprivation takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’” Rockwell v. Cape Cod Hosp., 26, F.3d 254, 256 (1st Cir. 1994); 42 U.S.C. § 1983; Lynch v. Dukakis, 719 F.2d 504, 509-510.
However, “[n]ot all violations of federal law give rise to § 1983 actions: ‘[t]he plaintiff must assert the violation of a federal right, not merely a violation of federal law.’” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 72-73 (1st Cir. 2005)(quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)(emphasis in original)); Gonzaga Univ. v Doe, 536 U.S. 273, 274, 122 S.Ct. 2268, 2270 2275, 153 L.Ed.2d 309 (2002)(“[I]t is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [Section 1983).”)). Such a federal right “must be ‘unambiguously conferred’ by the statutory provision at issue.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d at 72-73 (quoting Gonzaga Univ. v. Doe, 536 U.S. at 283, 122 S.Ct. 2268, 153 L.Ed.2d 309).
In Lynch v. Dukakis, the First Circuit concluded that the AACWA allows private enforcement actions for a case plan under § 671(a)(16) that is consistent with the provisions required by § 675(1). Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983)(Section 1983 action brought by children in the Massachusetts foster care system for alleged violations of the AACWA). The First Circuit
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acknowledged that “[t]here will be no section 1983 remedy when (1) the federal law confers no enforceable right, or (2) Congress has foreclosed the 1983 remedy through the act under consideration.” Lynch v. Dukakis, 719 F.2d at 510. The First Circuit noted, however, that “[s]ince at least 1968 the Supreme Court has implicitly and explicitly held that rights under various provisions of the Social Security Act are enforceable under section 1983,” id. at 510 (listing cases), and that the Supreme Court “has found remedies under the SSA to be exclusive only when the Act expresses such an intent.” Id. The First Circuit reasoned that, although section 671(b) of the AACWA authorizes the Secretary to withhold funds from noncomplying states, this “in no way purports to limit the availability of relief under any other provision.” Lynch, 791 F.2d at 510-511. Based on the language and structure of the AACWA, the First Circuit concluded that nothing “suggests that Congress meant section 671(b) to be an exclusive remedy” and it upheld the district court’s determination that a private cause of action under the AACWA was available to the plaintiffs. Id. at 514-515.
In 1992, the Supreme Court held that § 671(a)(15)27 of the AACWA did not create a private right of action enforceable under that section. Suter v. Artist M., 503 U.S. at 359, 112 S.Ct. 1360
27
Section 672(a)(15) relates to “reasonable efforts” to preserve and reunify families of foster children, and details the circumstances in which such an effort would, or would not be, appropriate. 42 U.S.C. § 671 (a)(15).
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(class action for injunctive relief brought by Illinois foster
children who alleged that the State failed to make reasonable
efforts to preserve or reunify families). In Suter, the Court
concluded that Congress did not intend to create a private remedy
and that the AACWA did not confer an implied cause of action.
Suter, 503 U.S. at 364, 112 S.Ct. 1360; see Johnson ex. re. Estate
of Cano v. Holmes, 377 F. Supp. 2d 1084, 1092-1093 (D.N.M., 2004).
Specifically, the Supreme Court determined that the AACWA only
required a State to have an approved State plan in order to be
eligible for reimbursements; the provision at issue lacked
“statutory guidance as to how [the state’s] ‘reasonable efforts’
were to be measured;” and the Secretary could enforce the act by
withholding or reducing payments to a State. Suter, 503 U.S. 359-
362. See also Carson P. ex rel. Foreman v. Heineman, 240 F.R.D.
456, 537 (D.Neb., Jan. 19, 2007).
In response to Suter, Congress enacted an amendment to the
AACWA, generally referred to as the “Suter fix.” Section 1320a-2
provides as follows:
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in [Suter], but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that such section is not intended to alter the holding in [Suter] that section 671(a)(15) of this title is not
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enforceable in a private right of action. 42 U.S.C. §1320d-2.
Following Suter and this Congressional amendment to the AACWA,
courts that addressed the issue have come to different conclusions
regarding the availability of a private action for alleged
violations of various AACWA provisions. See e.g., Johnson ex. re.
Estate of Cano v. Holmes, 377 F. Supp. 2d at 1093-1094 (listing
cases). The majority of courts concluded that § 1320a-2 overruled,
at most, “that portion of the opinion identifying and allowing a
court to rely exclusively on the ‘state plan’ criteria in
determining the existence of a federal right.” Carson P. ex rel.
Foreman v. Heineman, 240 F.R.D. at 538 (listing cases). In other
words, a statutory provision was not rendered “unenforceable by an
individual merely because the provision contains state plan
requirements.” Id. (quoting Watson v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006)).
In 1997, the Supreme Court fashioned a three-prong test in
Blessing to aid in the determination whether a federal statutory
provision creates a “right” enforceable under Section 1983:
First, Congress must have intended that the provision in question benefit the plaintiff. . . Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. Blessing v. Freestone, 520 U.S. at 340-341, 117 S.Ct. at 1360, 137 L.Ed.2d 569 (“In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.”); see also Rio Grande, 397 F.3d at 73.
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Subsequently, the Supreme Court clarified and tightened the test in Gonzaga, 536 U.S. 273, 282, 122 S.Ct. 2268, 2275, 153 L.Ed.2d 309 (2002) (stating that first prong of the Blessing test requires an “unambiguously conferred right.”). Following Gonzaga, the relevant inquiry includes (1) “whether the provision contains ‘rights-creating language,’” (2) “whether the provision has an aggregate as opposed to an individualized focus;” and (3) “the other sorts of enforcement provisions that Congress has provided.” Rio Grande, 397 F.3d at 73 (citing Gonzaga, 536 U.S. at 287-90, 122 S.Ct. 2268). As noted by the First Circuit: “This test is merely a guide, however, as the ultimate inquiry is one of congressional intent.” Id.; Gonzaga Univ. v. Doe, 536 U.S. at 280, 122 S.Ct. at 2273, 153 L.Ed.2d 309 (“[U]nless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to create individual enforceable rights, federal funding provisions provide no basis for private enforcement by § 1983.”).
In the case now before the Court, after the plaintiffs have voluntarily withdrawn the majority of their claims under the AACWA, the plaintiffs’ asserted rights are limited to (1) a case plan containing documentation, including child specific recruitment efforts, of steps taken to secure a permanent home for them, pursuant to 42 U.S.C. §§ 671(a)(16) and 675 (1)(E); and (2) adequate foster care maintenance payments, pursuant to 42 U.S.C. §§
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671(a)(1), 671(a)(11), 672(a)(11), 672(a)(1), and 675(4)(A).
Amended Complaint ¶ 231; Pltfs.’ Obj. 45 n. 36.
Section 671 sets forth the “[r]equisite features of a State
plan” for foster care and adoption assistance which a State must
develop in order to be eligible for federal payments under the
AACWA. Subsection 671(a)(16) provides “for the development of a
case plan (as defined in section 671(1) of this title) for each
child receiving foster care maintenance payments under the State
plan and . . . a case review system which meets the requirements
described in section 675(5)(B) of this title with respect to each
such child.” Section 675 further defines “case plan” and includes
the following provision in subsection 675 (1)(E):
In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems to facilitate orderly and timely in-State and interstate placements. 42 U.S.C. § 675(1)(E).
To retain eligibility for federal payments under the AACWA,
each State with an approved State plan “shall make foster care
maintenance payments on behalf of each child who has been removed
from the home of a relative . . . into foster care.” 42 U.S.C. §
672(a)(1). Subsection 675(4)(A) further defines “foster care
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maintenance payments” as: payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence. 42 U.S.C. § 675(4)(A).
As recognized by the District Court of Massachusetts in a recent challenge of the Massachusetts foster care system, “[f]ederal courts are divided as to whether the AACWA creates privately enforceable rights to either a case plan or foster care maintenance payments.” Connor B. v. Patrick, – F. Supp.2d –, 2011 WL 31343 * 20 n. 13, n. 14 (D.Mass. Jan. 4, 2011)(Ponsor, J.)(listing cases, a majority of which recognize rights to both). The Massachusetts district court concluded that the AACWA provisions at issue satisfied all three Gonzaga factors and, therefore, create privately enforceable rights to case plans and foster care maintenance payments. Connor B. v. Patrick, 2011 WL 31343 at *20-22 (“[A]pplication of the Gonzaga factors makes it clear that Congress intended to create privately enforceable rights to individualized case plans and foster care maintenance payments under the AACWA.”).
This Court agrees. With respect to these two provisions of the AACWA, neither their mandatory character nor the intended benefit to each child in the foster care system are ambiguous. An application
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of the Blessing factors (as refined by Gonzaga) to the AACWA sections at issue leads the Court to conclude that those specific provisions do confer a privately enforceable right on the plaintiffs. First, the requirements for a case plan with respect to “each child” and for foster care maintenance payments on behalf of “each child” who has been removed from his or her family, indicate that the plaintiff children are the intended beneficiaries of these provisions. 42 U.S.C. §§ 671(a)(16), 675(a)(1). These requirements demonstrate a focus on the specific needs of each child rather than a systemwide or aggregate focus. Moreover, the AACWA language regarding both provisions is explicitly mandatory, requiring that “a State . . . shall have a plan approved by the Secretary which -- (1) provides for foster care maintenance payments” and – (16) provides for the development of a case plan,” 42 U.S.C. §§ 751 (a) (1), (16), and that each State with an approved State plan “shall make foster care maintenance payments on behalf of each child.” 42 U.S.C. §§ 672(a)(1).
Second, the AACWA contains very specific requirements for an individualized case plan for each eligible child “that includes at least the following [elements],” 42 U.S.C. § 675 (1) (listing required numerous and detailed elements of case plan), and for foster care maintenance payments that “cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance
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with respect to the child, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.” 42 U.S.C. § 675(4)(A). As such, these provisions cannot be said to be so “‘vague and amorphous’ that [their] enforcement would strain judicial competence.” Blessing, 520 U.S. at 340-341.
In addition, while it is correct that, in order to receive federal funding, a State is primarily required to have an approved plan which provides, inter alia, for foster care maintenance payments, the plain language of § 672(a)(1) also requires that each State with an approved plan “shall make foster care maintenance payments on behalf of each child” who has been removed into foster care. 42 U.S.C. § 672(a)(1)(emphasis added).
Third, regarding other types of enforcement provisions, it is undisputed that the AACWA does not contain private enforcement remedies for a State’s non-compliance with the provisions on which the plaintiffs rely in their action. See e.g. 31 Foster Children v. Bush, 329 F.3d 1255, 1272. Under the AACWA, the Secretary of Health and Human Services is tasked with overseeing the child welfare programs and is authorized to withhold funding for noncompliance with federal mandates. 42 U.S.C. § 1320a-2a. However, there is nothing in the AACWA to indicate that Congress intended to preclude private causes of action. In fact, although the ruling in Suter regarding the unavailability of private
53

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enforcement of § 671(a)(15) was unaltered by the “Suter fix,” the amendment also expressed Congress’s intent not to preclude courts from determining whether other provisions of the AACWA allowed private enforcement actions.
The First Circuit’s analysis and conclusion in Lynch, while it precedes Blessing and Gonzaga, is not inconsistent with either of those cases or their required examination of Congressional intent. In light of the AACWA’s mandatory requirements to provide benefits to each child in the same circumstances as the plaintiffs, and the unavailability of other means to seek relief against alleged violations of the specific AACWA provisions raised in this case, this Court is of the opinion that the plaintiffs are not precluded from proceeding with their Section 1983 claims for alleged violations of their rights under the AACWA.
E. Breach of Contract Claims The plaintiffs allege in their amended complaint that the State Plan required for federal reimbursement under the AACWA is a “legal contract[] between the federal government and the State” and that the plaintiffs, “as the intended direct third-party beneficiaries to these State Plan contracts are (i) being denied their rights under law to the services and benefits that the State of Rhode Island is obligated to proved to them under such contracts, and (ii) being harmed thereby.” Amended Complaint ¶ 237, 238. The defendants initially assert that, because the plaintiffs have failed to
54

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demonstrate an enforceable right under the AACWA, their contract claim should be dismissed as well. Defs.’ Mot. 103. Additionally, the defendants argue that the plaintiffs have not established the existence of a contract. Defs.’ Reply 50. In response, the plaintiffs suggest that the allegations in their amended complaint are sufficient to establish a contract. Pltfs. Obj. 65.
In light of the Court’s earlier determination that the AACWA confers a private right of action on the plaintiffs with respect to two particular provisions therein, protracted discussion of the plaintiffs’ breach of contract claim is unnecessary. As noted by another district court addressing a breach of State Plan claim, “the third party beneficiary issue is inextricably linked with the question of whether the AACWA creates a private right of action.” D.G. ex. rel. Stricklin v. Henry, 594 F. Supp. 2d 1273, 1281 (N.D. Okla. 2009). Therefore, courts that have had occasion to consider this issue have generally dismissed or preserved a related breach of contract claim depending on their conclusion regarding the viability of a private action under the AACWA. See, e.g., D.G. ex. rel. Stricklin v. Henry, 594 F. Supp. 2d at 1281 (concluding that third party beneficiary claim failed because no private right of action under AACWA); Charlie H. v. Whitman, 83 F. Supp.2d 476 (D.N.J. 2000)(rejecting plaintiffs’ intended beneficiary claims under either theory); Kenny A. ex. rel. Winn v. Perdue, 218 F.R.D. 277, 279 (N.D.Ga. 2003)(concluding that AACWA creates federal rights
55

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enforceable under 42 U.S.C. § 1983 and that State Plans are contracts enforceable by plaintiffs as intended third-party beneficiaries.)
The Court expresses some doubt as to the plaintiffs’ ability to establish that the State Plan at issue is a binding contract; however, because the plaintiffs’ claims for the State’s alleged noncompliance with the State Plan remains viable in their § 1983 claim pursuant to the AACWA, the Court is of the opinion that dismissal of the plaintiffs’ breach of contract claim would be premature at this juncture.
Conclusion For the reasons set forth above, the Court DENIES the defendants’ request to abstain from this case pursuant to the Younger doctrine with respect to the requested relief of (1) caseload caps for DCYF workers; (2) adequate training of DCYF workers; and (3) increase in the array and type of placements, including foster homes. The Court GRANTS the defendants’ request to abstain from this case pursuant to the Younger doctrine with respect to the requested relief of (1) decreasing the rate of institutionalization; (2) increasing the rate of adoptions; (3) decreasing the number of placements per child; and (4) decreasing the length of time in foster care. The Court DENIES the defendants’ request to abstain from this
56

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case pursuant to the Rooker-Feldman doctrine. The Court GRANTS the defendants’ motion to dismiss the amended
complaint as it relates to named plaintiffs Deanna H., Sam M., Tony M., Caesar S., and Michael B., on the ground that the claims became moot upon each child’s adoption.
The Court DENIES the defendants’ motion to dismiss the remaining plaintiffs’ claims with respect to (i) the right to a case plan containing documentation, including child specific recruitment efforts, of steps taken to secure a permanent home for them, as provided in 42 U.S.C. § 671(a)(16); and (ii) the right to adequate foster care maintenance payments as provided in 42 U.S.C. §§ 671(a)(1), (a)(11), 672(a)(1), and 675(4)(A). All other claims raised under the AACWA are herewith DISMISSED.
The Court DENIES the defendants’ motion to dismiss the remaining plaintiffs’ claims for breach of contract.
SO ORDERED.
/s/ Mary M. Lisi Mary M. Lisi Chief United States District Judge
July 20, 2011
57

 
 Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 1 of 30 PageID #: 88

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

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 A. 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.

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 2 of 30 PageID #: 89

Plaintiffs, by and through their attorneys of record, respectfully move this Court for an Order certifying a class in this action and declaring that this action may be maintained as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs request oral argument in the amount of 15 minutes. In support of this motion, Plaintiffs state as follows:

1. The proposed class is defined as: "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth, and Families due to a report or suspicion of abuse or neglect"; and

2. The proposed class and its named representatives comply with the requirements contained in Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, as set forth more fully in Plaintiff's Brief in Support of Motion for Class Certification and Appointment of Class Counsel, which is incorporated herein.

WHEREFORE, Plaintiffs respectfully request that an Order be issued certimng this case as a class action, approving the named Plaintiffs as representative Plaintiff Children, and appointing class counsel as further requested in the accompanying brief.

DATED: June d g,2007

R.e-s. pecthlly Submitted:
u JAME~T0 .AALSTON (Bar No. 3909)
C H I L A~ DVOCATE OF THE STATE OF RHODE ISLAND 272 West Exchange Street, Suite 301 Providence, RI 02903 Phone: (401) 222-1690

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 3 of 30 PageID #: 90
Facsimile: (401) 222-6652
305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: j wdineenl @yahoo.com
MARCIA ROBINSON LOWRY (Bar No. 11870% (NY); pro hac vice application pending)
SUSAN LAMBIASE (Bar No. 2099489 (NY);pro hac vice application pending)
CHILDREN'S RIGHTS 330 Seventh Avenue, Fowth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org
VERNON M. WINTERS (Bar No. 130128 (CA); pro hac vice application pending)
WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vemon.winters@weil.com

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 4 of 30 PageID #: 91

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND

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,

1

Plaintiffs,

)

V.

1

)

DONALD L. CARCIERI, in his official )

capacity as Governor of the State of Rhode )

Island; JANE A. HAYWARD, in her

1

official capacity as Secretary of the

Executive Office of Health & Human

)

Services; and PATRICIA MARTINEZ, in )

her official capacity as Director of the

1

Department of Children, Youth and

Families,

07 241k-
ction
Civil Action No.

Defendants.

MEMORANDUM IN SUPPORT O F PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

I. Preliminary Statement

In this action, Plaintiffs seek injunctive relief on behalf of a class of abused and neglected children in the foster care custody of the Rhode Island Department of Children, Youth and Families (DCYF). Because of DCYF's chronic and consistent failure to fulfill its constitutional and statutory duties to protect the children in its charge, Plaintiff Children's rights are being violated and will continue to be violated until there is systemic reform of the child welfare

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 5 of 30 PageID #: 92
system. Plaintiffs now respectfully submit this Memorandum in Support of Plaintiffs' Motion for Class Certification and Appointment of Class Counsel.
The Plaintiffs in this action are children who are or will be in the foster care custody of DCYF due to allegations of abuse or neglect. Plaintiffs seek class-wide declaratory and injunctive relief to remedy the ongoing failure of Defendants-the Governor of Rhode Island, the Secretary of the Rhode Island Executive Office of Health and Human Services (HHS), and the Director of DCYF, sued in their official capacities-to care for, protect, and provide childwelfare services to Plaintiff Children as required by the United States Constitution and federal law.
Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs seek an order certifying this case as a class action, with the class defined as "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect" ("Plaintiff Children" or "the Class"). As current and hture children in foster care, Plaintiff Children are entirely dependent upon Defendants, who are required by law to provide them with appropriate care, protection, and services. Although the child-welfare system is intended to protect vulnerable children, children in foster care custody of DCYF are instead subjected to further harm, and the imminent risk of additional harm, as a consequence of the acts and omissions of Defendants.
As set forth below, this action satisfies all the requirements for class certification. Accordingly, this Court should issue an order certifying this case as a class action, with the class defined as "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect," and appointing undersigned counsel to represent them as class counsel.

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11. Background Facts and Legal Issues A. Defendants Must Provide Safety, Well-Being, and Permanency to Plaintiff Children The State of Rhode Island has approximately 3,000 children in DCYF foster care custody.
As the legal custodians of these children, Defendants are required by the United States Constitution and federal law to protect their safety and well-being and to return them home as
quickly as possible or, when that is not possible, to timely find permanent homes for them. Defendants' specific obligations to Plaintiff Children under the Constitution are based in the First, Ninth, and Fourteenth Amendments. See, e.g., Hodgson v. Minnesota, 497 U.S. 417,44748 (1990) (noting that Ninth and Fourteenth Amendments protect family integrity); Roberts t! United States Jaycees, 468 U.S. 609, 617-20 (1984) (reiterating Court's long-standing recognition that Bill of Rights protects family relationships against unjustified interference by the state); Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982) (holding that Due Process Clause of Fourteenth Amendment guaranteed mentally retarded Plaintiff's rights to safe conditions of confinement and freedom fiom bodily restraint when involuntarily committed);' Santosky v. Kramer, 455 U.S. 745,753 (1982) (recognizing right to family integrity); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing right to family integrity grounded in part on Ninth Amendment concept of zone of privacy). Defendants' statutory obligations arise from the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe
I Youngberg has been applied to children in foster care in numerous cases. See, e.g., Hernandez v. Texas Dep't of Protective & Regulatory Sews., 380 F.3d 872, 881-82 (5th Cir. 2004); Norfleet v. Arkansas Dep 't of Human Sews., 989 F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. New Mexico Dep't of Human Sews., 959 F.2d 883, 892--93 (10th Cir. 1992); Olivia Y. v. Barbour, 351 F. Supp. 2d 543, 555-56 (S.D. Miss. 2004); K.H. v. Morgan, 914 F.2d 846, 8.51 (7th Cir. 1990); Danielle v. Johnson, 284 F. Supp. 2d 1368, 1373-73 (S.D. Fla. 2003); Brian A. v. Sundquist, 149 F. Supp. 2d 941: 953 (M.D. Tenn. 2000); Charlie & Nadine H. v. Whitman, 83 F . Supp. 2d 476, 507 (D.N.J. 2000); Taylor v. Ledbetter, 818 F.2d 791, 795 (1lth Cir. 1987); Marisol A. v. Giuliani, 929 F. Supp. 662, 675-77 (S.D.N.Y. 1996); Eric L. v. Bird, 848 F. Supp. 303, 307 (D.N.H. 1994); LaShawn A. v. Dixon, 762 F. Supp. 959, 993,996 (D.D.C. 1991).

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Families Act of 1997, and regulations promulgated thereunder (the "Adoption Assistance Act").
42 U.S.C. $5 620 et seq., 670 et seq. Plaintiff Children also seek to enforce their federal
procedural due process rights to the benefits of certain entitlements conferred by the Adoption
Assistance Act and certain Rhode Island statutes, as well as their federal common-law rights.
B. Defendants Have Violated and Continue to Violate Named Plaintiffs' Federal Rights
Defendants' conduct with respect to each Named Plaintiff reflects and illustrates
Defendants' routine, systematic violation of some or all of the federal constitutional and statutory
rights of Rhode Island's foster children. For example:
Sam and Tony M.: During the eight years since DCYF first removed Sam, 13, and Tony, 9, from their abusive parents, they have suffered physical and sexual abuse, endured multiple unstable and inappropriate placements, and been denied critical medical and mental health services. DCYF has repeatedly attempted to reunify Sam and Tony with their parents, even though each attempt has resulted in additional maltreatment. DCYF has ignored evidence that Sam and Tony have been sexually abused, refusing to evaluate them or provide treatment to help them cope with the trauma of this abuse. DCYF has kept both Sam and Tony in institutions when unnecessary to meet their needs, simply because DCYF had nowhere else to place them. At times, DCYF has separated the brothers, but has failed to arrange regular visits between them. Sam and Tony suffered further trauma when their cousin died in DCYF custody. At only nine years of age, Tony is now in his twelfth placement and has not lived in a home since 2004. Sam is in his tenth placement. DCYF has taken no steps to find permanent families for these boys. Sam and Tony remain separated and institutionalized, irreparably harmed by the untreated physical, sexual, and psychological trauma that Defendants' actions and inactions have caused them.
Caesar S.: Caesar, five, was only 15 months old when he was removed fi-om his substance-abusing parents due to neglect. He has been in DCYF custody for most of his life. Instead of working to find a permanent home for Caesar, DCYF has cycled him through eight placements, many of them unlicensed and inappropriate, where he has suffered physical and sexual abuse. DCYF has placed Caesar with relatives who had previously found to have abused or neglected children, who physically abused him, and who used and sold controlled substances. DCYF left Caesar in one placement for 11 months even though he had told a caseworker that he was being physically abused in that home. Although Caesar began to suffer serious behavioral problems during this time, DCYF has allowed Caesar's mental

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health to deteriorate significantly instead of providing appropriate treatment for the trauma he has suffered. Since September 2005, Caesar has lived in an unlicensed, inappropriate, impermanent placement where he receives inadequate services. For years, DCYF planned to reunify Caesar with his parents, even though they showed only minimal interest in their son, did not complete substance abuse treatment, parenting classes, and psychiatric evaluations, and failed to show up for visits with Caesar and for their own court dates. DCYF never worked to find another permanent home for Caesar and only freed him for adoption this month, June 2007.
David T.: David has been in DCYF custody for 11 of his 13 years. During that time, DCYF has shuffled him through 14 placements, almost all shelters or other institutions. David has suffered sexual abuse while in DCYF custody and has been injured due to neglect. The last time David lived in a home was when, at the age of 4, he was in an adoptive placement that fell through, resulting in acute feelings of loss and trauma. Instead of providing treatment to help David cope with these feelings, DCYF put him in one shelter after another for three months. David's mental health began to deteriorate during this time and has continued to worsen since, yet DCYF has consistently failed to provide appropriate mentalhealth treatment for David. DCYF has denied David any form of permanency planning and simply allowed him to languish in one harmful institutional placement after another. At one point, David spent months in a psychiatric hospital because DCYF did not have a bed for him in a more appropriate setting. In another institution, David was restrained 105 times in a four-month period. His education has been fragmented and his service needs have not been met. David was visited by a DCYF caseworker only ten times between 2001 and 2003, only once in 2004, and only once in 2005. Now deemed by DCYF to be "too damaged for placement," David lives in an institution in Massachusetts. DCYF has no plan for David's future.
Briana, Alexis, Clare, and Deanna H.: Sisters Briana, six, Alexis, five, Clare, one, and Deanna, eight months, have spent most of their young lives in DCYF foster care custody. Even before DCYF took any of these girls into custody, their mother had already lost her parental rights to five other children and their father had lost his rights to three children. Nevertheless, despite their parent's long history of child maltreatment, when DCYF took Briana and Alexis into foster care custody in 2003, it assigned them the goal of reunification. Less than a year later, DCYF reunified Briana and Alexis with their father, despite evidence that he was not ready to care for his daughters. At the time, their mother was incarcerated. DCYF took Briana and Alexis into custody again 12 months later because their father was smoking crack in their presence. DCYF ignored evidence that they had been sexually abused by another adult in the home. When Clare was born, a month after Briana and Alexis returned to foster care, DCYF immediately took Clare into custody and placed her in an overcrowded, unlicensed relative home, where there was an older child who posed a danger to others. Soon after, DCYF transferred Briana and Alexis to this home, removing them fi-om a relative's home, where they were thriving. Their parents repeatedly failed to show up for

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visits and court dates, but DCYF did not change its plan to reunify Briana, Alexis, and Clare with their parents. When Deanna was born in October 2006, DCYF immediately placed her in a foster home but assigned her the goal of reunification. In February 2007, the father had his parental rights to all the girls except Deanna terminated. Since then, DCYF has been trying to persuade the mother to relinquish her own rights to the three older sisters while still allowing her to visit the girls. DCYF remains committed to the goal of reunification for Deanna, despite her parents' repeated arrests and their failure to address the problems that led them to lose their children. Today, Briana, Alexis and Clare remain in the same impermanent placement with a relative who is uninterested in adopting them. Deanna remains with a different foster family. DCYF has only referred two of the older girls for adoption.
Danny and Michael B.: DCYF took brothers Danny, six, and Michael, five, into foster care custody over three years ago, after watching the boys7mother neglect them over a period of 15 months. Since then, DCYF has separated the boys and put them in a series of temporary, inappropriate placements. After DCYF placed Danny in the home of a foster parent with a long history of abuse complaints, Danny suffered sexual abuse. DCYF has failed to provide timely mental health services to either brother, despite evidence that their psychological conditions are precarious and worsening. For the first 15 months that Danny and Michael were in DCYF custody, their permanency goal remained reunification, while their mother tested positive for drugs, was arrested twice, attempted suicide, became homeless, and made no progress on addressing the problems that led to the boys' removal. A month after his sexual abuse, DCYF briefly reunited Danny with Michael but the brothers began to exhibit sexualized behavior and were again separated. Danny was then placed in a group home, where he remains today, institutionalized at the age of six because of acute mental-health issues that DCYF failed to address appropriately when they first became apparent. Michael is languishing with an elderly relative who cannot permanently care for him. Because of DCYF's failure to provide any appropriate permanency planning for either Danny or Michael, neither boy has any current prospect of growing up in a loving, permanent home.
Each Named Plaintiff has suffered and continues to suffer harm as the result of multiple
constitutional deprivations and statutory violations effected by a poorly managed and
underfunded child-welfare system. Collectively, Named Plaintiffs' experiences illustrate and
represent the profound, systemic failings of Rhode Island's child-welfare system and the ongoing
harms that Plaintiff Children suffer while in Defendants' care.

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C. Defendants Have Systematically Violated and Continue to Violate Plaintiff Children's Rights, Causing Them Harm
As demonstrated in the Complaint, the constitutional deprivations and statutory violations
that each Named Plaintiff has suffered and continues to suffer are typical of the harms being
inflicted upon thousands of children in Rhode Island's foster care custody. As stated more fully
in the Complaint:
Plaintiff Children are abused and neglected while in foster care: Since 2000 children in foster care in Rhode Island have suffered abuse and neglect at a rate that has remained the worst or nearly the worst in the nation. For five of the six years between Federal Fiscal Years 2000 and 2005, the rate of abuse or neglect in care was the highest in the nation and for the sixth year it was the second highest. Abuse and neglect of children in foster care in Rhode Island has been so pervasive that children in Rhode Island are more likely to suffer abuse or neglect if they are
in foster care than if they are not. (Compl. 77 5, 129-33.)
Defendants rely on expensive and inappropriate shelters and other institutions for Plaintiff Children rather than developing a sufficient number and variety of safe foster homes: There is a chronic shortage of foster homes in Rhode Island due to Defendants' failure to recruit, train, license, and adequately reimburse foster parents. Defendants instead make excessive use of shelters and other institutions for Plaintiff Children who, according to federal law and reasonable professional judgment, should be placed in the least restrictive, most family-like setting that is consistent with their needs. Defendants leave Plaintiff Children in inappropriate and harrnhl institutional placements for protracted periods of time, during which Plaintiff Children's health and well-being
deteriorate. (Compl. 77 5, 134-41.)
Defendants place Plaintiff Children far from their homes: Contrary to federal law and reasonable professional judgment, Defendants regularly place Plaintiff Children in settings that are far from their homes. As a result, Plaintiff Children's ties to their families, friends, communities, and schools are strained or severed. Distant placements also mean less frequent contact with caseworkers, who must visit children regularly to ensure that they are safe and that their needs are being
met. (Compl. 77 142-44.)
Defendants frequently move Plaintiff Children from one placement to another: Defendants decide where to place Plaintiff Children on the basis of bed availability rather than on the basis of individual children's needs, and Defendants fail to assess Plaintiff Children's needs and to deliver services to meet their needs. As a result, Plaintiff Children's placements frequently disrupt and Defendants then move them to other, often equally inappropriate placements. The

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disruptiveness of each placement move causes Plaintiff Children's well-being to
deteriorate. (Compl. 77 5, 145-50.)
Defendants separate Plaintiff Children from their siblings: Contrary to law and reasonable professional judgment, Defendants separate Plaintiff Children from their siblings rather than placing them together. Defendants also fail to ensure that Plaintiff Children visit the siblings from whom they have been separated. Separation from siblings is particularly traumatic and damaging to
Plaintiff Children. (Compl. 11151-54.)
Defendants fail to assess Plaintiff Children's needs and fail to plan or deliver services to meet those needs: Federal and state law and reasonable professional judgment require that all children in foster care have written, regularly updated case plans based on individual assessments of their needs. Defendants' failure to comply with these requirements means that Defendants fail to identify Plaintiff Children's current needs and fail to plan or deliver services to meet those needs, at
great cost to Plaintiff Children's well-being. (Compl. 77 5, 155-59.)
Defendants fail to reunify Plaintiff Children with their parents in a timely, planned, and safe manner, when reunification is appropriate: Defendants' failure to identify and provide services to meet the needs of Plaintiff Children and their families results in needless, harmful delay in reunification of those Plaintiff Children for whom reunification is an appropriate goal. Once Plaintiff Children are reunified, Defendants' fail to deliver the supportive services on which successful reunification depends. The predictable result is that reunification
efforts fail and Plaintiff Children are returned to foster care. (Compl. 77 160-65.)
Defendants pursue reunification when it is not an appropriate goal: Defendants continue to pursue reunification of Plaintiff Children despite evidence that reunification is inappropriate or cannot succeed. As a result, Plaintiff Children languish for years in foster care instead of being freed for adoption and
placed in loving adoptive homes. (Compl. 77 5, 166-72.)
Defendants fail to meet Plaintiff Children's health care needs: Plaintiff Children suffer needless harm as a result of Defendants' failure to ensure that their often considerable physical, dental, and mental health care needs are met.
Defendants' failures in the area of mental health are particularly great. (Compl. 77
179-86.)
Defendants assign excessive caseloads to social caseworkers, making it impossible for caseworkers to visit Plaintiff Children: Reasonable professional standards for foster care prescribe caseloads of between 12 and 15 children per caseworker. In contrast, Defendants typically assign caseloads in excess of 30 children per caseworker. These caseloads make it impossible for caseworkers to visit Plaintiff Children on a regular basis. Caseworker visits are crucial to ensuring that Plaintiff Children are safe and that their needs are being
met. (Compl. 77 187-201.)

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Defendants forfeit available federal funds: Despite statutory requirements to maximize the use of federal funds, Defendants forfeit readily available federal funds. Defendant Carcieri has acknowledged that placing Plaintiff Children in unlicensed placements alone will mean foregoing $1.5 million in federal funds in Fiscal Year 2008, since federal funds are contingent on the use of licensed placements. Defendants' forfeiture of federal funds is one reason why they are
unable to ensure the safety and well-being of Plaintiff Children. (Compl. 71211-
12.)
Defendants' excessive reliance on expensive institutional placements harms children and wastes scarce financial resources: Defendants make excessive use of institutional placements for Plaintiff Children whose needs would better be met in less restrictive, family-like settings. Not only does this practice harm children, it is a waste of scarce financial resources. For children with special needs, therapeutic or specialized foster homes can often provide more appropriate care than institutions at a fraction of the cost. Defendants squander scarce dollars by relying on costly institutional placements for children who do not need them.
(Compl. 77 213-15.)
Defendants do not provide adequate reimbursement to foster parents: Federal and state law and reasonable professional judgment require Defendants to reimburse foster parents for the full cost of caring for Plaintiff Children who are placed in their homes. Nevertheless, Defendants do not adequately reimburse foster parents. As a result, foster parents are less able to meet Plaintiff Children's needs. Defendants' low reimbursement rates also contribute to Defendants'
difficulty in recruiting additional foster parents. (Compl. 17216-18.)
Plaintiffs have commenced this action to stop these and other systemic legal violations by
Defendants and the harms that Defendants directly cause to foster children. These violations do
not merely affect the Named Plaintiffs; they affect the entire Class. Plaintiffs seek system-wide
declaratory and injunctive relief to end these violations and to ensure that Defendants comply
with their constitutional and federal statutory obligations to Plaintiff Children.
111. Argument
A. This Action Meets All Requirements for Class Certification
The widespread, pervasive, and systemic nature of the violations at issue in this action
makes it critical for the Court to certify this case as a class action. The Federal Rules of Civil

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Procedure provide for class certification if the four requirements of Rule 23(a) and one of the requirements of Rule 23(b) are satisfied. Fed. R. Civ. P. 23(a)-(b) (2006); Amchem Prods., Inc. v. Windsov, 52 1 U.S. 591, 614 (1997). Rule 23(a)'s four requirements for class certification are:
(i) the class is so numerous that joinder of all members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (iv) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Where all four requirements of Rule 23(a) are met, certification is proper under Rule 23(b)(2) if, in addition, "the party opposing the class has acted or refised to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). Plaintiffs in this case seek certification under Rules 23(a) and 23(b)(2) of a class consisting of "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." Courts in the First Circuit have routinely certified classes under Rules 23(a) and 23(b)(2) in cases alleging systemic violations of federal constitutional and statutory law. See, e.g., Griffin v. Burns, 570 F.2d 1065, 1072-74 (1st Cir. 1978) (affirming certification of class of absentee and shut-in Rhode Island voters claiming that retroactive invalidation of ballots deprived them of constitutional right to vote); Colon v. Wagner, 462 F. Supp. 2d 162, 174 (D. Mass. 2006) (certifying class of current and former recipients of emergency shelter benefits alleging that state's termination of benefits violated Due Process Clause); Risinger ex rel. Risinger v. Concannon, 201 F.R.D. 16, 19-23 (D. Me. 2001) (certifying class of children alleging that state

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failed to provide in-home mental health services for which they were eligible under Early and Periodic Screening, Diagnosis and Treatment provisions of Federal Medicaid Act); Eric L. v. Bird, No. 91-376-M, 1993 WL 764420, "1 (D.N.H. Dec. 16, 1993) (unpublished) (certifying class of all children who are subjects of abuse or neglect complaints or petitions, or who are otherwise entitled to services of Division of Children and Youth Services, and who are in foster care or some other out-of-home placement, and who allege violations of rights to reasonable care and safety, to family integrity, and to entitlements under state child protection statute, and certifying subclass of disabled children alleging violation of Equal Protection Clause); see also Lynch v. Dukakis, 719 F.2d 504, 506 n.1 (1st Cir. 1983) (recognizing certification of class of "[all1 children subject to protective intervention by agencies of the Commonwealth of Massachusetts under the foster family home care system" in lawsuit challenging systemic violations of children's rights by Massachusetts' child welfare system; Rule 23(b)(2) not explicitly cited); Rosie D. v. Romney, 410 F. Supp. 2d 18'22 (D. Mass. 2006) (recognizing certification of class of children with serious emotional disturbances who alleged that state failed to provide services required by Medicaid Act; Rule 23(b)(2) not explicitly cited).
Moreover, there are numerous cases in other jurisdictions where class certification has been granted in similar lawsuits challenging systemic violations of children's rights under federal law. See, e.g.,Marisol A. v. Giuliani, 126 F.3d 372,375 (2d Cir. 1997) (finding no abuse of discretion in district court's certification of class comprising "[all1 children who are or will be in the custody of the New York City Administration for Children's Services ('ACS'), and those children who, while not in the custody of ACS, are or will be at risk of neglect or abuse and whose status is or should be known to ACS," in lawsuit challenging systemic violations of children's rights by New York City's child welfare system); Dwayne B. v. Granholm, No. 06-

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13548, slip op. at 1-2 (E.D. Mich. Feb. 15,2007) (certifying class defined as "all children who are now or will be in the foster care custody of Michigan's Department of Human Services ('DHS') in in-home or out-of-home placements"); Kenny A. v. Pevdue, 218 F.R.D. 277, 305 (N.D. Ga. 2003) (certifying class defined as "[all1 children who have been, are, or will be alleged or adjudicated deprived who (1) are or will be in the custody of any of the State Defendants; and (2) have or will have an open case in Fulton County DFCS or DeKalb County DFCS"); Charlie & Nadine H. v. Whitman, No. 99-3678, slip op. at 3, 18 (D.N.J. March 7,2002) (unpublished) (certifying classes defined as "(1) all children who are or will be in the involuntary custody of New Jersey DYFS; and (2) all African-American and Hispanic children who are or will be in the custody of the New Jersey DYFS, and who have been or are subject to the immediate risk of being denied or delayed adoption or foster care placement based on their race, color or national origin"); .leanine B. v. Thompson, 877 F. Supp. 1268, 1288 ( E D . Wisc. 1995) (certifying class comprising "(1) children who are in foster care custody in Milwaukee County and who come into foster care custody in Milwaukee County; and (2) children who are not in foster care custody in Milwaukee County, but about whom the County Department of Human Services has received reports of abuse or neglect, and children who become the object of such reports" in lawsuit challenging systemic violations of children's rights by Milwaukee's child welfare system); David C. v. Leavitt, No. 93-C-206 W, 1993 WL 764518, "2 (D. Utah May 7,1993) (unpublished) (certifying class defined as: "(1) All children who are now or who will be in the custody of DHS and who have been or who will be placed by DHS in a shelter care facility, foster-family home, group home or institutional care; and, (2) All children who are or who will be known to DHS by virtue of a report of abuse or neglect" in lawsuit challenging systemic violations of children's Ilghts by Utah's child welfare system); LaShawn A. v. Dixon, 762 F.

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Supp. 959,994 11.28 (D.D.C. 1991) (noting previous certification of class comprising all children in foster care custody of District of Columbia Department of Human Services and all children known to DHS because of reported abuse or neglect, in lawsuit challenging systemic violations of children's rights by District of Columbia's child welfare system), af'd in relevantpart, 990 F.2d 1319, 1326 (D.C. Cir. 1993) ("certification was proper in relation to the pendent claims, as well as the federal claims"); L.J. v. Massinga, 699 F. Supp. 508, 510 (D. Md. 1988) (noting previous certification of class composed of "all children who are, have been, or will be placed in foster homes by the BCDSS [Baltimore City Dep't of Soc. Serv.] and are or will be placed in the custody of the BCDSS through voluntary placement or court order" in lawsuit challenging practices of BCDSS); GL v. Zumwalt, 564 F. Supp. 1030, 1031 (W.D. Mo. 1983) (noting previous certification of class of children in the custody of the Jackson County Office of the Missouri Division of Family Services in lawsuit alleging systemic violations of children's rights by child welfare system of Jackson, Missouri); Wilder v. Bernstein, 499 F. Supp. 980,994 (S.D.N.Y. 1980) (certifying class defined as "all those New York City children who are black, and who are Protestant, of other non-Catholic or non-Jewish faiths, or are of no religion, and are in need of child-care services outside their home" in case alleging systemic racial and religious discrimination in foster care placements). Indeed, the Third Circuit held in a similar child welfare case that the district court's denial of class certification constituted an abuse of discretion. Baby Neal v. Casey, 43 F.3d 54, 56 (3rd Cir. 1994) (reversing denial of class certification for Rule 23(b)(2) class consisting of "all children in Philadelphia who have been abused or neglected and are or should be known to the Philadelphia Department of Human Services" and all children in its custody).

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Plaintiffs in this case seek certification of a class defined as "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." Because this clearly defined putative class meets all the requirements of Rules 23(a) and 23(b)(2), this Court should grant class certification.
1. The Class Meets the Numerosity, Commonality, Typicality, and Adequacy Requirements of Rule 23(a)
a. The Class Is So Numerous That Joinder Is Impracticable Plaintiff Children have two distinct bases for satisfying the numerosity requirement: the sheer size of the proposed Class and its fluid composition. The proposed Class of approximately 3,000 abused and neglected children exceeds the size of many classes certified in the First Circuit, thus easily meeting the numerosity requirement of Rule 23(a) that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(l ); see, e.g.,Adver. Specialty Nut ' I Ass 'n v. Fed. Trade Comm 'n, 238 F.2d 108, 119 (1st Cir. 1956) ("In this proceeding petitioners constitute a class of over 300 members, which appears a sufficient number to fall within the accepted legal test of the 'impracticability' of joining them as respondents."); Griffin v. Burns, 43 1 F. Supp. 1361, 1365 (D.R.I. 1977) ("The class of 123 absentee and shut-in voters is sufficiently numerous as to make joinder impracticable."); Driver v. Helms, 74 F.R.D. 382, 403 (D.R.I. 1977) (holding that "about 300" putative class members was "a number in itself sufficient to render joinder impracticable"), rev 'd in part on other grounds, 577 F.2d 147 (1st Cir. 1W8),judgment rev 'd sub nom. Staflord v. Briggs, 444 U . S . 527 (1980). Joinder is impracticable here not only because of the sheer number of children in the proposed Class but also because that number does not remain steady over time as children enter and exit foster care. Where the number of class members is not fixed but changes over time,

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joinder is less practical. Adveu: Specialty Nut 'I Ass 'n, 238 F.2d at 119. Precise enumeration of the members of a putative class is unnecessary for the certification of Rule 23(b)(2) classes, whose members "are often incapable of specific enumeration." Yafe v. Powers, 454 F.2d 1362, 1366 (I st Cir. 1972) (internal quotation omitted). The proposed Class is clearly defined but its membership is inherently fluid, making joinder impracticable here.
b. There Are Questions of Law or Fact Common to the Class "The requirement of establishing that there are questions of law or fact common to the class is not a particularly onerous one." Yan West v. Midland Nut 'I Life Ins. Co., 199 F.R.D. 448, 452 (D.R.I. 2001). The proposed class meets the commonality requirement of Rule 23(a) because the systemic deficiencies in Defendants' child welfare system affect all children who have the misfortune to enter their care. Defendants' systematic failure to fulfill their constitutional and statutory obligations to the children in their foster care custody gives rise to common questions of law and fact within the meaning of Rule 23(a)(2). Indeed, a finding of commonality is especially appropriate in cases where, as here, "plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them, and there is therefore no need for individualized determinations of the propriety of injunctive relief." Baby Neal, 43 F.3d at 57 (emphasis in original). Plaintiffs allege that systemic deficiencies in Defendants' foster care system-including the lack of adequate safeguards to protect Plaintiff Children from abuse or neglect while in DCYF custody; a chronic and severe shortage of appropriate placements with current licenses; dangerously high caseloads for DCYF caseworkers; inappropriate and unsafe placements, including institutional placements; poor planning, decision-making, and services to enable children to move into safe and appropriate permanent homes; inadequate payments to foster care

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providers; and fiscal waste-have resulted and continue to result in severe harms to class
members and constitute violations of class members' federal constitutional and statutory rights.
There are numerous questions of fact common to all members of the Class, including:
a. Whether Defendants fail to provide Plaintiff Children with safe, appropriate, and stable foster care placements, causing significant harm to their health and well-being;
b. Whether Defendants fail to prevent the abuse or neglect of Plaintiff Children while in Defendants' custody, causing significant harm to their health and well-being;
c. Whether Defendants fail to place Plaintiff Children in the least restrictive and most family-like settings suited to their needs, unnecessarily institutionalizing them and causing significant harm to their health and well-being;
d. Whether Defendants fail to provide Plaintiff Children with legally required services necessary to keep them safe and properly cared for, and to prevent them from deteriorating physically, psychologically, or otherwise while in custody, as required by law and reasonable professional judgment, causing significant harm to their health and well-being;
e. Whether Defendants unsafely return Plaintiff Children to caretakers who abuse or neglect them again, causing significant harm to their health and well-being;
f. Whether Defendants unnecessarily move Plaintiff Children from placement to placement, causing significant harm to their health and wellbeing;
g. Whether Defendants fail to provide Plaintiff Children and their families with appropriate decision-making as well as timely and appropriate services necessary to ensure the safe and successful reunification of children with their families when appropriate, causing significant harm to their health and well-being;
h. Whether Defendants fail to provide Plaintiff Children with timely and appropriate decision-making as well as appropriate procedures and services necessary to ensure that when they cannot be reunited with their families safely, they are promptly freed for adoption and placed in permanent homes, causing significant harm to their health and well-being; and

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I. Whether Defendants fail to provide Plaintiff Children with the supports necessary to maintain family relationships where appropriate, including placing siblings together and providing parent and sibling visits, causing significant harm to their health and well-being.

(Compl. 71 13.)

Likewise, there are a number of questions of law common to all Class members,

including the following:

a. Whether Defendants' actions and inactions violate Plaintiff Children's substantive due process rights to be free from harm while in state custody, guaranteed by the Fourteenth Amendment to the United States Constitution;

b. Whether Defendants' actions and inactions violate Plaintiff Children's rights to family integrity, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution;

c. Whether Defendants7actions and inactions violate Plaintiff Children's rights to mandated foster care and adoption services, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations,;

d. Whether Defendants' actions and inactions violate class Plaintiff Children's rights to adequate foster care maintenance payments, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations;

e. Whether Defendants' actions and inactions violate Plaintiff Children's third-party beneficiary rights under the Title IV-E plan executed between Rhode Island and the federal government; and

f.
(Compl. 7 14.)

Whether Defendants7 actions and inactions violate Plaintiff Children's rights to procedural due process, guaranteed by the Fourteenth Amendment to the United States Constitution.

This Court has used the formulation of the commonality agreement that Third Circuit

articulated in certifying a class nearly identical to the one proposed here. See Van West v.

Midland Nat'l Life Ins. Co., 199 F.R.D. 448,452 (D.R.I. 2001) (citing Baby Neal, 43 F.3d at 56).

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 21 of 30 PageID #: 108
The plainti% in Baby Neal were children in foster care in Philadelphia who alleged systemic deficiencies that interfered with the provision of child welfare services required by the Constitution and federal and state law. The Baby Neal court found that, "[ilnsofar as the children challenge the scheme for the provision of child welfare services, their claims share a common legal basis." Baby Neal, 43 F.3d at 61. Because "the commonality standard requires only that a putative class share either the injury or the immediate threat of being subject to the injury," the plaintiffs in Baby Neal had plainly satisfied the commonality requirement. Baby Neal, 43 F.3d at 60.
The same result is warranted here. Common questions of fact and law, as described above, run throughout the class members' individual cases. And here, as in Baby Neal, Plaintiff Children are "challenging common conditions and practices under a unitary regime," and are "subject to the risk that they [would] suffer fiom the same deprivations resulting fiom the [child welfare agency's] alleged violations." Baby Neal, 43 F.3d at 60. As the commonality requirement "does not demand that every issue to be litigated must be an issue common to the claims of all class members," but only "requires the existence of some common issue or issues," that requirement for class certification is clearly satisfied here. Van West, 199 F.R.D. at 452 (citing Baby Neal, 43 F.3d at 56) (emphasis in original).
c. The Claims of the Named Plaintiffs are Typical of the Claims of the Class
The claims of Named Plaintiffs and Plaintiff Children alike arise from the same set of federal rights that are systematically violated by Defendants through their acts and omissions. Named Plaintiffs' claims and defenses are typical of the claims and defenses of all children that DCYF is charged with protecting, and "prosecution of the class representative[s'] case[s] will benefit the entire class." Van West v. Midland Nut 'I Life Ins. Co., 199 F.R.D. 448,452 (D.R.I.

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 22 of 30 PageID #: 109
2001). Thus, the requirement of Rule 23(a)(3) that "the claims or defenses of the representative parties are typical of the claims or defenses of the class" is satisfied.
That Defendants may have harmed Plaintiff Children in different ways and to varying degrees does not negate Named Plaintiffs' typicality. The typicality inquiry does not require probing the particular circumstances of each class member. GnBn v. Burns, 570 F.2d 1065, 1074 (Ist Cir. 1978) ("Actions under Rule 23(b)(2) may be more rough-hewn than those in which the court is asked to award damages"). The critical factor is that the Named Plaintiffs' claims arise "from the same event or practice or course of conduct that gives rise to the claims of other class
members and . . . are based on the same legal theory." Rosen v. Textvon, Inc., 369 F. Supp. 2d 204,
208 (D.R.I. 2005). Moreover, typicality does not require that the interests and claims of all Named Plaintiffs and class members be identical in a civil rights class action such as this. United States v. Khode Island Dep 't of Employment See., 619 F. Supp. 509, 513 (D.R.I. 1.985)("where the class members have suffered discrimination as a result of a uniform, centrally administered policy, the requirements of commonality and typicality are adequately met even without complete identity of damage sustained") (internal quotations and citations omitted).
Named Plaintiff's claims are also typical because they are based on the same legal theory: deprivation of the same federal rights. Rosen, 369 F. Supp. 2d at 208 ("similarity of legal theory may satisfy the typicality requirement even in the face of factual distinctions"). Named Plaintiffs, for example, allege violations of their substantive and procedural due process rights to be free from harm while in state custody and federal statutory rights under the Adoption Assistance Act, the same legal theories that underlie Plaintiff Children's corresponding claims. Similarly,Named Plaintiffs challenge the same system-wide policies and practices that give rise

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to the legal claims of the Class. In short, Named Plaintiffs satisfy the typicality requirement of Rule 23(a)(3).
d. Named Plaintiffs Will Adequately Represent the Members of the Proposed Class
The Named Plaintiffs "will fairly and adequately protect the interests of the class," Fed. R. Civ. P. 23(a)(4), because their request for broad systematic reforms "will not conflict with the interests of any of the class members," Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985), and because they are represented by highly qualified and experienced counsel who are able to conduct this litigation vigorously. Accord Rosen v. Textron, Inc., 369 F. Supp. 2d 204, 216 (D.R.I. 2005). Named Plaintiffs seek broad declaratory and injunctive relief ordering Defendants to effect systemic reforms that will provide the entire Class with the protection, care, treatment, and services to which each child is legally entitled. Because the relief sought by Named Plaintiffs coincides with the relief sought for the Class as a whole, "this circumstance accords a congruence of interest between the class and individual claims, and the named representative[s'] self interest is advanced by a vigorous pursuit of the class claims." DeGrace v. Rumsfeld, 614 F.2d 796, 809 (1st Cir. 1980). Relief for the few named here will accord relief to all abused and neglected children in Rhode Island's foster care system.
Further, Plaintiffs have retained experienced and competent counsel who will more than "fairly and adequately protect the interests of the class," as required by Rule 23(a)(4). Plaintiffs are represented by the Rhode Island Office of the Child Advocate; the nonprofit organization Children's Rights; the law firm Weil, Gotshal & Manges LLP; and Rhode Island attorney John Dineen. The Rhode Island Office of the Child Advocate is an independent state agency charged with protecting and vindicating the rights of children in state custody. (Alston Decl. 1 2 (citing
R.I. Gen. Laws $ 5 42-73-1 et seq. (2006)).) Included in the O f i c e of the Child Advocate's

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statutory mandate is the periodic review of DCYF's policies and procedures and the investigation of circumstances relating to the death of any child who has received DCYF services. (Alston
Decl. 7 2 (citing R.I. Gen. Laws $ 42-73-7(2)).) The Office of the Child Advocate is required to
"[tlake all possible action including, but not limited to . . . formal legal action, to secure and
ensure the legal, civil, and special rights of children" in DCYF foster care custody. (Alston Decl.
7 2 (citing R.I. Gen. Laws 5 42-73-7(6)).)
Children's Rights' attorneys have served as class counsel on much of the major child-
welfare litigation in the United States. (Alston Decl. 7 7; Lowry Decl. 77 7-8.) The attorneys at
Children's Rights have many years of experience litigating similar class actions across the country, asserting constitutional and statutory claims on behalf of children in foster care to obtain
system-wide injunctive and declaratory relief. (Alston Decl. 7 7; Lowry Decl. 77 7-8.) Weil,
Gotshal & Manges LLP is one of the leading private law firms in the country. (Alston Decl. 1[8;
Lowry Decl. 7 5 . ) Weil's attorneys bring a wealth of experience in all areas of complex civil litigation. (Alston Decl. 7 8; Lowry Decl. 7 5.) And Rhode Island attorney John Dineen has
previously litigated constitutional claims on behalf of foster children in Rhode Island, serving as co-counsel since 2001 in OJfficeof Child Advocate v. Lindgren, No. 1:86-cv-00723-L (D.R.I. 1986), challenging DCYF's practice of placing children in its custody in night-to-night
placements. (Alston Decl. 7 9; Lowry Decl. 7 6.)
Prior to filing this action, Plaintiffs' counsel conducted an in-depth investigation of all aspects of the Rhode Island child welfare system's operation and its treatment of children.
(Alston Decl. 7 11;Lowry Decl. 7 10.) Counsel spent hundreds of hours meeting with sources and stakeholders and compiling and analyzing data. (Alston Decl. 7 11; Lowry Decl. 7 10.)

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Counsel thoroughly researched all of Plaintiff Children's legal claims. (Alston Decl. T[ 11; Lowry
Decl. 7 lo.)
Counsel's combined experience, knowledge, resources, and dedication unquestionably satisfy the adequacy requirement for class certification.
2. Class Certification is Warranted Under Rule 23(b)(2) In addition to satisfying the four requirements of Rule 23(a), the proposed Class meets the criteria set out in Rule 23(b)(2), which provides for class certification where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). Plaintiffs seek relief fkoin Defendants' systemic failures, including their failure: to protect children in DCYF's custody from further abuse and neglect while in care; to license an appropriate number and range of safe placements for foster children; to place foster children together with their siblings in appropriate homes and move them as infrequently as possible; to assign manageable caseloads to DCYF caseworkers; to reimburse foster care providers adequately; to reunify children in foster care with their parents in a timely manner, but only when it is safe to do so; to deliver an adequate and appropriate array of educational, medical, dental, and mental health services to children in foster care; and to obtain maximum federal funding for child welfare. These and the other failures set forth in the Complaint generally affect all members of the Class, and the declaratory and injunctive relief sought is intended to have class-wide scope and effect. Plaintiffs' Prayer for Relief specifically requests final declaratory and injunctive relief to enjoin ongoing, systemic violations of the rights of all children in the foster care custody of DCYF, and to ensure that these children receive the protection, care, treatment, and services due to them as a matter of law. Because "defendant's

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 26 of 30 PageID #: 113
alleged actions are generally applicable to the class as a whole and injunctive relief would be appropriate if entitlement to relief is established," this is a "classic 23(b)(2) case." Caranci v. Blue Cross & Blue Shield ofRhode IslancE, 194 F.R.D. 27,40 (D.R.I. 2000).
The standards for certification of a class under Rule 23(b)(2) are not demanding. "If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2)." Bertozzi v. King Louie Int '1, Inc., 420 F. Supp. 1166, 1180-8 1 (D.R.I. 1976). Explaining that "the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists," the First Circuit has found Rule 23(b)(2) to be "uniquely suited to civil rights actions in which members of the class are often incapable of specific enumeration." Yafe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (internal quotation omitted); see also McCuin v. Sec 'y of Health & Human Sews., 817 F.2d 161, 167 (1987) ("where only declaratory and injunctive relief is sought for a class, plaintiffs are not required to identify the class members once the existence of the class has been demonstrated"). Because Plaintiffs seek only injunctive relief designed to remedy Defendants' violation of the constitutional and statutory rights of an entire class, and to prevent future violations of those rights, certification under Rule 23(b)(2) is proper, if not required.
Additionally, certification under Rule 23(b)(2) is warranted because the very nature of foster care makes it exceedingly difficult for individual plaintiffs to vindicate their own claims, let alone to obtain relief that would remedy the harms suffered by foster children generally as a result of Defendants7conduct. The transitory nature of foster care is such that individual claims often become moot as children return home, are adopted, or "age out" of the system. The First Circuit has long recognized that the "danger that the individual claim might be moot" is itself a factor that weighs in favor of class certification under Rule 23(b)(2). Dionne v. Bouley, 757 F.2d

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 27 of 30 PageID #: 114
1344, 1356 (1st Cir. 1985) ("There may . . . be situations where a class certification under Rule 23(b)(2) will arguably be unnecessary, but where other considerations may render a denial of certification improper. This could be the case, for example, where there is a danger that the individual claim might be moot.") Taken together, the likelihood of individual children's claims becoming moot, the fact that Defendants' acts and omissions are generally applicable to Plaintiff Children, and the purely injunctive nature of the relief sought, compel class certification under Rule 23(b)(2).
3. The Proposed Class Should Be Certified As demonstrated above, the four requirements of Rule 23(a), as well as the requirements of Rule 23(b)(2), are fully satisfied here. Therefore, pursuant to Rule 23(c)(l), this Court should certify this case as a class action, with the Class defined as: "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." Fed. R. Civ. P. 23(c)(l) (2006).
B. Plaintiffs' Counsel Will Fairly and Adequately Represent the Interests of the Class and Should Be Appointed Class Counsel
Plaintiffs' counsel's breadth and depth of civil rights and class action experience, along with their extensive investigation into the facts and law of this case and their ability to commit the necessary time and resources to prosecute this action, eminently qualify them to "fairly and adequately represent the interests of the class" as class counseL2Fed. R. Civ. P. 23(g)(l)(B) (2006). First, counsel have identified and thoroughly investigated all claims in this action.
2 In making this determination, the Court is guided by four statutory considerations: (1) "the work counsel has done in identifying or investigating potential claims in the action"; (2) "counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the present action"; ( 3 ) "counsel's knowledge of the applicable law"; and (4) "the resources counsel will commit to representing the class." Fed. R. Civ. P. 23(g)(l)(C) (2006).

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 28 of 30 PageID #: 115
(Alston Decl. 7 11; 1,owry Decl. 7 10.) Second, counsel have extensive experience in handling
class actions, other complex litigation, and claims of the type asserted here on behalf of large classes of children in foster care who have sought the type of injunctive relief requested here.
(Alston Decl. 7 7; Lowry Decl. 77 7-8.) Third, counsel have a comprehensive knowledge of the
applicable law, based both on current legal research and on the experience of attorneys from Children's Rights, who have served as class counsel on much of the major child-welfare
litigation in this country. (Alston Decl. 7 11;Lowry Decl. 77 7-1 0.) And, fourth, counsel have
committed sufficient resources to prosecute this action in a thorough and expeditious manner,
having assembled a strong and well-resourced legal team. (Alston Decl. 7 6, 12; Lowry Decl. 77
3, 10.) Because Plaintiffs7counsel clearly satisfy the standard for appointment of class counsel
contained in Rule 23(g)(l)(B) and (C), this Court should appoint Plaintiffs' counsel as class counsel in this action.
IV. Conclusion This action, which seeks injunctive relief on behalf of a class of thousands of Rhode
Island children, satisfies all of the requirements for class certification under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Accordingly, pursuant to Rule 23, Plaintiffs respectfully request that this Court enter an order certifying this action as a class action for all purposes, with the Class defined as: "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." Further, Plaintiffs respectfully request an order appointing Plaintiffs' counsel as class counsel pursuant to Rule 23(g).

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Dated June ,2007

Respectfully Submitted:
CHIL~~~PDVOOCFATE
THE STATE OF RHODE ISLAND 272 West Exchange Street, Suite 301 Providence, RI 02903 Phone: (401) 222-1690 Facsimile: (401) 222-6652

305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: dineenjw@aol.com
MARCIA ROBINSON LOWRY (Bar No. 1187053 (NY); pro hac vice application pending)
SUSAN LAMBIASE (Bar No. 2099489 (NY); pro hac vice application pending)
CHILDREN'S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org

Case 1:07-cv-00241-ML -LDA Document 2 Filed 06/28/07 Page 30 of 30 PageID #: 117
VERNON M. WINTERS (Bar No. 130128 (CA);pro hnc vice application pending)
WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vernon.winters@weil.com

 
 Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 1 of 97 PageID #: 713

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., et al.,
Plaintiffs,
v.
DONALD L. CARCIERI, in his official capacity as Governor of the State of Rhode Island, et al.,
Defendants.

)

)

)

)

)

)

Class Action

) Civil Action No. 1:07-cv-00241-L-LDA

)

)

)

)

)

PLAINTIFFS’ MEMORANDUM OF LAW IN OBJECTION TO DEFENDANTS’ MOTION TO DISMISS

Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 2 of 97 PageID #: 714
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................v PRELIMINARY STATEMENT ..........................................................................................1 BACKGROUND ..................................................................................................................4
DEFENDANTS ARE LEGALLY RESPONSIBLE FOR THE CARE AND CUSTODY OF PLAINTIFF CHILDREN, AND THE NAMED PLAINTIFF CHILDREN’S INJURIES ARE THE DIRECT RESULT OF DEFENDANTS’ ACTIONS AND INACTIONS ....................................................4 ARGUMENT ........................................................................................................................9 I. LEGAL STANDARD FOR A MOTION TO DISMISS..........................................9 II. THIS COURT HAS JURISDICTION TO ADJUDICATE PLAINTIFF CHILDREN’S CLAIMS, WHICH ARE BROUGHT BY PROPER NEXT FRIENDS .................................................................................................................10 A. Plaintiff Children are Properly Represented by Next Friends .....................11 B. Plaintiff Children’s Next Friends are Appropriate.......................................14 III. THE COURT SHOULD NOT ABSTAIN UNDER YOUNGER v. HARRIS..........20 A. Plaintiff Children’s Complaint Poses No Threat to Comity Because
Rhode Island Has Voluntarily Agreed to Federal Oversight of its Child Welfare System in Exchange for Federal Funding ......................................22 B. This Court Should Not Abstain Because, as a Threshold Matter, Río Grande Precludes the Application of Younger to Plaintiff Children’s Complaint.....................................................................................................24 1. No State Enforcement Action is Implicated by This Federal
Lawsuit.............................................................................................24 2. The Relief Sought Will Not Interfere With Any Family Court
Proceedings ......................................................................................29 C. Abstention is Not Warranted Under the Middlesex Test .............................35
1. The Family Court Proceedings are Not Ongoing Proceedings Within the Meaning of Younger ......................................................35
2. Plaintiff Children’s Claims Do Not Intrude Upon Any Exclusive Area of Important State Interest......................................37
ii

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3. Plaintiff Children Do Not Have an Adequate Opportunity to Present Their Federal Claims in Their Family Court Proceedings ......................................................................................38
IV. THERE IS NO BASIS TO ABSTAIN UNDER ROOKER-FELDMAN .................44
V. THE RIGHTS ASSERTED IN PLAINTIFF CHILDREN’S FOURTH CAUSE OF ACTION ARE PRIVATELY ENFORCEABLE ................................47
A. Congress Has Clearly Signaled That It Intended “State Plan” Provisions of the Social Security Act to be Privately Enforceable..............49
B. The Legal Standard for Determining the Existence of Individual Statutory Rights ...........................................................................................52
C. The Specific AACWA Provisions on Which Plaintiff Children Rely All Create Enforceable Rights .....................................................................56
1. Plaintiff Children Have an Enforceable Right to Timely Written Case Plans Containing Mandated Elements, and to a Case Review System to Ensure the Implementation of Those Plans, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1) and 675(5)(A).......................................................................56
2. Plaintiff Children Have an Enforceable Right to Have a Timely Petition to Terminate Parental Rights Filed, Pursuant to 42 U.S.C §§ 622(b)(8)(A)(ii) and 675(5)(E) ........................................63
3. Plaintiff Children Have an Enforceable Right to Have Their Health and Educational Records Reviewed, Updated and Supplied to the Foster Care Providers with Whom They Are Placed at the Time of Placement, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1)(C) and 675(5)(D)...................68
4. Plaintiff Children Have an Enforceable Right to Services to Protect Their Safety and Health, Pursuant to 42 U.S.C. §§ 622(b)(15), 671(a)(22) and 675(1)(B) .............................................70
5. Plaintiff Children Have an Enforceable Right to Planning and Services to Facilitate Their Safe Return Home or Permanent Placement, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(iii), 629a(a)(1)(A), 629a(a)(7), 629a(a)(8), 675(1)(B) and 675(1)(E)....72
6. Plaintiff Children Have an Enforceable Right to Foster Care Maintenance Payments Made on Their Behalf That Cover the Cost of Food, Clothing, Shelter, Daily Supervision, School Supplies, Reasonable Travel to Family Visitation and Other
iii

Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 4 of 97 PageID #: 716 Expenses, Pursuant to 42 U.S.C. §§ 671(a)(1), 671(a)(11), 672 and 675(4)(A)...................................................................................75
7. Plaintiff Children Have an Enforceable Right to Placements That Conform to Reasonable Professional Standards, Pursuant to 42 U.S.C. §§ 671(a)(10) and 671(a)(11)......................................79
D. Plaintiff Children’s Federal Statutory Claims Should Not Be Dismissed .....................................................................................................81
CONCLUSION....................................................................................................................81
iv

Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 5 of 97 PageID #: 717
TABLE OF AUTHORITIES Supreme Court Cases
Alexander v. Sandoval, 532 U.S. 275 (2001)...........................................................................59, 62 Blessing v. Freestone, 520 U.S. 329 (1997) .......................................................................... passim Cannon v. University of Chicago, 441 U.S. 677 (1979) ........................................53, 56, 68, 71, 77 Colorado River Water Conservation District v. United States, 424 U.S. 800
(1976) .......................................................................................................................................20 Conley v. Gibson, 355 U.S. 41 (1957) .............................................................................................9 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ..........................3, 44–47 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005) .............................44–46 Gonzaga University v. Doe, 536 U.S. 273 (2002) ................................................................. passim Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ..............................................................................21 Lance v. Dennis, 546 U.S. 459 (2006)...........................................................................................45 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163 (1993)...................................................................................................................9 Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423
(1982)............................................................................................................................... passim Moore v. Sims, 442 U.S. 415 (1979)........................................................................................38, 43 New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350 (1989)............ passim Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)..............................................................3, 44–47 Scheuer v. Rhodes, 416 U.S. 232 (1974) .........................................................................................9 South Dakota v. Dole, 483 U.S. 203 (1987) ..................................................................................24 Suter v. Artist M., 503 U.S. 347 (1992) ...................................................................................49–51 Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635
(2002) .......................................................................................................................................46 Whitmore v. Arkansas, 495 U.S. 149 (1990) ...........................................................................16, 17 Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990) ....................................................... passim
v

Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 6 of 97 PageID #: 718
Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987)...........................................................................................................................52, 54, 55
Younger v. Harris, 401 U.S. 37 (1971)....................................................................................20, 21 First Circuit Cases
Adames v. Fagundo, 198 F. App’x 20 (1st Cir. 2006)...................................................................45 Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996) ....................................................................9 Barrios-Velazquez v. Asociación de Empleados del Estado Libre Asociado de
Puerto Rico, 84 F.3d 487 (1st Cir. 1996)...................................................................................9 Bettencourt v. Board of Registration in Medicine of Massachusetts, 904 F.2d 772
(1st Cir. 1990) ..........................................................................................................................28 Brooks v. New Hampshire Supreme Court, 80 F.3d 633 (1st Cir. 1996).................................28, 38 Bryson v. Shumway, 308 F.3d 79 (1st Cir. 2002) ....................................................................80, 81 Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252 (1st Cir. 1993) .......................28 Coyne v. City of Somerville, 972 F.2d 440 (1st Cir. 1992) ..............................................................9 Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000) ................................................................................38 Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F. 2d 281 (1st
Cir. 1982) ...........................................................................................................................12, 14 Diaz v. Stathis, 576 F.2d 9 (1st Cir. 1978).....................................................................................28 Diva’s Inc. v. City of Bangor, 411 F.3d 30 (1st Cir. 2005)............................................................46 Doe v. Donovan, 747 F.2d 42 (1st Cir. 1984)................................................................................28 Douglas v. New Hampshire Supreme Court Professional Conduct Commission,
187 F.3d 621 (1st Cir. 1998) (unpublished table decision)......................................................28 Duty Free Shop, Inc. v. Administración de Terrenos de Puerto Rico, 889 F.2d
1181 (1st Cir. 1989) .................................................................................................................28 Esso Standard Oil Co. v. Cotto, 389 F.3d 212 (1st Cir. 2004) ......................................................28 Federación de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de
Puerto Rico, 410 F.3d 17 (1st Cir. 2005).................................................................................45 Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306 (1st Cir. 1986)......................................................40
vi

Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 7 of 97 PageID #: 719
Gooley v. Mobil Oil Corp., 851 F.2d 513 (1st Cir. 1988)................................................................9 Guiney v. Roache, 833 F.2d 1079 (1st Cir. 1987)..........................................................................38 In re Justices of the Superior Court Department of the Massachusetts Trial Court,
218 F.3d 11 (1st Cir. 2000)......................................................................................................28 Jackson v. García, 665 F.2d 395 (1st Cir. 1981)...........................................................................28 Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50 (1st Cir. 2004) ...........................53 Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983) .................................................................... passim Mandel v. Town of Orleans, 326 F.3d 267 (1st Cir. 2003) ............................................................28 Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27 (1st Cir. 2004)........................................21, 28 Nieves-Márquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003)......................................................24 Río Grande Community Health Center v. Rullan, 397 F.3d 56 (1st Cir. 2005) .................... passim Rivera-Puig v. García-Rosario, 983 F.2d 311 (1st Cir. 1992) ......................................................37 Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003)..........................................................53, 56, 59, 71 Rossi v. Gemma, 489 F.3d 26 (1st Cir. 2007) ..........................................................................28, 29 United Books, Inc. v. Conte, 739 F.2d 30 (1st Cir. 1984)..............................................................28 Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7 (1st Cir. 1990) .............................20 Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962
(1st Cir. 1993) ............................................................................................................................9 Other Federal Cases
31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) ................................................ passim Ad Hoc Committee of Concerned Teachers v. Greenburgh #11 Union Free School
District, 873 F.2d 25 (2d Cir. 1989) ............................................................................12, 15, 16 ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005), cert. denied, 127 S. Ct. 51 (2006) .......................78 Baby Neal v. Casey, 821 F. Supp. 320 (E.D. Pa. 1993).................................................................36 B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989)...................................................48, 51, 55, 63 Bowen v. Rubin, 213 F. Supp. 2d 220 (E.D.N.Y. 2001) ..........................................................14–17
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 8 of 97 PageID #: 720
Brian A. v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000)............................................ passim California Alliance of Child & Family Services v. Allenby, 459 F. Supp. 2d 919
(N.D. Cal. 2006).......................................................................................................................78 Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007) ...................................................... passim Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000)............................................................36 Child v. Beame, 412 F. Supp. 593 (S.D.N.Y. 1976) ......................................................................16 Clark K. v. Guinn, No. 2:06-CV-1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May
14, 2007) ................................................................................................................48, 63, 69, 71 Colonial Penn Group, Inc. v. Colonial Deposit Co., 654 F. Supp. 1247 (D.R.I.
1987) ........................................................................................................................................40 Davani v. Virginia Department of Transportation, 434 F.3d 712 (4th Cir. 2006) ........................46 Del A. v. Edwards, No. 86-0801, 1988 WL 19284 (E.D. La. Mar. 2, 1988) .....................48, 51, 63 Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920 (E.D. Mich. Apr. 17,
2007) ................................................................................................................................ passim Gardner v. Parson, 874 F.2d 131 (3d Cir. 1989) ..............................................................10, 13, 14 Gilbert v. Ferry, 413 F.3d 578 (6th Cir. 2005) ..............................................................................46 Hoblock v. Albany County Board of Elections, 422 F.3d 77 (2d Cir. 2005) .................................46 Hoffert v. General Motors, 656 F.2d 161 (5th Cir. 1981) .............................................................12 Inmates of Boys’ Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972)............................27 J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999)........................................................................32–34 Jeanine B. v. McCallum, No. 93-C-0547, 2001 WL 748062 (E.D. Wis. June 19,
2001) ............................................................................................................................48, 65, 68 Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995) ...................................48, 63, 70, 80 Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002) .............................................................30, 34 Joseph A. v. New Mexico Department of Human Services, 575 F. Supp. 346
(D.N.M. 1983)..........................................................................................................................51 Joseph A. v. New Mexico Department of Human Services, No. Civ. 80-623
JC/DJS, slip op. (Jan. 16, 2003)...............................................................................................30
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 9 of 97 PageID #: 721
Kenny A. v. Perdue, 218 F.R.D 277 (N.D. Ga. 2003)............................................................ passim LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991) ........................................................ passim LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993) ................................................36, 39, 48, 51 L.H. v. Jamieson, 643 F.2d 1351 (9th Cir. 1981) ..............................................................30, 36, 39 L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988) .................................................................48, 51, 63 Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) ...................................31, 36, 38, 48, 80 Marisol A. v. Giuliani, No. 95 Civ. 10533, 1998 WL 265123 (S.D.N.Y. May 22,
1998) ............................................................................................................................14–16, 18 Missouri Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir. 2002) ............................................24 Missouri Child Care Ass’n v. Martin, 241 F. Supp. 2d 1032 (W.D. Mo. 2003) .....................55, 78 Mosby v. Ligon, 418 F.3d 927 (8th Cir. 2005)...............................................................................46 Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002) ......................................................31 Norman v. McDonald, 930 F. Supp. 1219 (N.D. Ill. 1996) ...............................................48, 63, 70 Norman v. Johnson, 739 F. Supp. 1182 (N.D. Ill. 1990)...................................................48, 55, 63 Occean v. Kearney, 123 F. Supp. 2d 618 (S.D. Fla. 2000)................................................48, 63, 70 Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004)...................... passim Olivia Y. v. Barbour, 351 F. Supp. 2d 543 (S.D. Miss. 2004) ...........................................30, 32, 36 Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. (S.D. Miss. Mar. 11, 2005) ................15, 18, 19 Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. (S.D. Miss. Aug 29, 2006).......................30, 36 Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004)............................................................37, 38 People United for Children v. City of New York, 108 F. Supp. 2d 275 (S.D.N.Y.
2000) ........................................................................................................................................39 R.C. v. Hornsby, No. 88-D-1170-N, slip op. (M.D. Ala. Apr. 19, 1989) ......................................51 Rubin v. Smith, 882 F. Supp. 212 (D.N.H. 1995) ....................................................................12, 13 Southern Union Co. v. Lynch, 321 F. Supp. 2d 328 (D.R.I. 2004)................................................38 United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996) ..............................................................29
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 10 of 97 PageID #: 722
Wexler v. Lepore, 385 F.3d 1336 (11th Cir. 2004) ........................................................................41 White v. Chambliss, 112 F.3d 731 (4th Cir. 1997) ........................................................................51
State Cases Britt v. Britt, 383 A.2d 592 (R.I. 1978)..........................................................................................40 DeCesare v. Lincoln Benefit Life Co., 852 A.2d 474 (R.I. 2004)..................................................40 In re Doe, 390 A.2d 390 (R.I. 1978)..............................................................................................27 In re Jane Doe, 533 A.2d 523 (R.I. 1987) .....................................................................................13 In re Stephanie B., 826 A.2d 985 (R.I. 2003) ..........................................................................26, 27 Waldeck v. Piner, 488 A.2d 1218 (R.I. 1985)................................................................................40
Constitutional Amendments U.S. Const. amend. I ........................................................................................................................1 U.S. Const. amend. IX .....................................................................................................................1 U.S. Const. amend. XIV ..................................................................................................................1
Federal Statutes, Regulations, Rules Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, § 103(c), 111 Stat.
2115 (1997) (codified at 42 U.S.C. § 675 note).................................................................65, 66 42 U.S.C. §§ 621 et seq. (2006).....................................................................................................47 42 U.S.C. § 622 (2006) ..................................................................................................................61 42 U.S.C. § 622(b)(8)(A)(ii) (2006) ...................................................................................... passim 42 U.S.C. § 622(b)(8)(A)(iii) (2006) .......................................................................................72, 74 42 U.S.C. § 622(b)(10)(B)(ii) (2000).............................................................................................60 42 U.S.C. § 622(b)(15) (2006).......................................................................................................70 42 U.S.C. § 627 (1996) ..................................................................................................................49 42 U.S.C. § 629a(a)(1)(A) (2006)..................................................................................................72
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 11 of 97 PageID #: 723
42 U.S.C. § 629a(a)(7) (2006) .................................................................................................72–74 42 U.S.C. § 629a(a)(8) (2006) .................................................................................................72–74 42 U.S.C. §§ 670 et seq. (2006).....................................................................................................47 42 U.S.C. § 671(a) (2006)..............................................................................................................66 42 U.S.C. § 671(a)(1) (2006) .........................................................................................................75 42 U.S.C. § 671(a)(10) (2006) ...........................................................................................51, 79, 80 42 U.S.C. § 671(a)(11) (2006) ...........................................................................................75, 79, 80 42 U.S.C. § 671(a)(15) (2006) ...........................................................................................49, 50, 64 42 U.S.C. § 671(a)(16) (2006) ............................................................................................... passim 42 U.S.C. § 671(a)(22) (2006) .......................................................................................................70 42 U.S.C. § 672 (2006) ..................................................................................................................75 42 U.S.C. § 672(a)(1) (2006) .........................................................................................................57 42 U.S.C. § 675(1) (2006) .................................................................................................56–59, 71 42 U.S.C. § 675(1)(A) (2006)........................................................................................................69 42 U.S.C. § 675(1)(B) (2006) ............................................................................................58, 70–73 42 U.S.C. § 675(1)(C) (2006) ..................................................................................................68, 69 42 U.S.C. § 675(1)(E) (2006) ............................................................................................60, 72–74 42 U.S.C. § 675(4)(A) (2006)..................................................................................................75, 76 42 U.S.C. § 675(5) (2006) ...........................................................................................58–60, 63, 66 42 U.S.C. § 675(5)(A) (2006)............................................................................................56, 58, 59 42 U.S.C. § 675(5)(C) (2006) ........................................................................................................26 42 U.S.C. § 675(5)(D) (2006)............................................................................................60, 68, 69 42 U.S.C. § 675(5)(E) (2006) ................................................................................................ passim
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 12 of 97 PageID #: 724
42 U.S.C. § 1320a-2 (1994) ...........................................................................................................50 42 U.S.C. § 1320a-2a (2007) ...................................................................................................61, 62 42 U.S.C. § 1320a-10 (1994) .........................................................................................................50 42 U.S.C. § 1983 (2006) ........................................................................................................ passim 45 C.F.R. §§ 1355–57 (2001) ........................................................................................................47 45 C.F.R. § 1355.20(a) (2001).................................................................................................76, 77 45 C.F.R. § 1356.21(g) (2001).................................................................................................59, 60 45 C.F.R. § 1356.21(g)(3) (2001) ..................................................................................................27 45 C.F.R. § 1356.21(i) (2001)..................................................................................................67, 68 45 C.F.R. § 1356.21(m) (2001)....................................................................................75, 76, 79, 80 45 C.F.R. § 1357.10(c) (1996).................................................................................................71, 73 Federal Rules of Civil Procedure 12(b)(1) (2006).................................................................1, 9, 47 Federal Rules of Civil Procedure 12(b)(6) (2006).................................................................1, 9, 47 Federal Rules of Civil Procedure 17(c) (2006)............................................................10–12, 14, 15
State Statutes, Regulations, Rules R.I. Gen. Laws § 11-9-5.1................................................................................................................5 R.I. Gen. Laws § 14-1-6...................................................................................................................5 R.I. Gen. Laws § 14-1-32...........................................................................................................7, 26 R.I. Gen. Laws § 14-1-34.......................................................................................................4, 7, 12 R.I. Gen. Laws § 14-1-35...........................................................................................................4, 12 R.I. Gen. Laws § 15-7-7.........................................................................................................5, 7, 26 R.I. Gen. Laws § 15-7-11.................................................................................................................5 R.I. Gen. Laws § 15-7-25.................................................................................................................5
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R.I. Gen. Laws § 40-11-3.................................................................................................................5 R.I. Gen. Laws § 40-11-5.................................................................................................................5 R.I. Gen. Laws § 40-11-6.................................................................................................................5 R.I. Gen. Laws § 40-11-7.................................................................................................................5 R.I. Gen. Laws § 40-11-12.....................................................................................................4, 7, 26 R.I. Gen. Laws § 40-11-12.1................................................................................................5, 26, 35 R.I. Gen. Laws § 40-11-12.2......................................................................................................5, 26 R.I. Gen. Laws § 40-11-12.3............................................................................................................5 R.I. Gen. Laws § 40-11-14.............................................................................................................44 R.I. Gen. Laws § 42-72-2.................................................................................................................4 R.I. Gen. Laws § 42-72-4.............................................................................................................6, 7 R.I. Gen. Laws § 42-72-5.............................................................................................................4–7 R.I. Gen. Laws § 42-72-10...............................................................................................................5 R.I. Gen. Laws § 42-72-11...............................................................................................................5 R.I. Gen. Laws § 42-72-13...............................................................................................................5 R.I. Gen. Laws § 42-72.1-1..............................................................................................................5 R.I. Gen. Laws § 42-72.9-7..............................................................................................................5 R.I. Gen. Laws § 42-73-7...............................................................................................................41 Rhode Island Rule of Juvenile Procedure 17...........................................................................26, 35 Rhode Island Superior Court Rule of Civil Procedure 23 .............................................................40
Books 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice
and Procedure § 1570 (3d ed. 2005) .......................................................................................14
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 14 of 97 PageID #: 726 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1572 (2d ed. 1990) ...................................................................................................................15 Black’s Law Dictionary (6th ed. 1990)..........................................................................................13 Legislative Materials H.R. Rep. No. 102-631 (1992).................................................................................................49–51
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 15 of 97 PageID #: 727
PRELIMINARY STATEMENT Named Plaintiff Children bring this civil rights action on behalf of themselves and other children similarly situated (collectively, “Plaintiff Children”) against Defendants, the Governor of Rhode Island, the Secretary of the Executive Office of Health and Human Services (HHS) and the Director of the Department of Children, Youth and Families (DCYF). Defendants are responsible for administering a child welfare system that is so understaffed, mismanaged and unresponsive that it harms the abused and neglected children it is mandated to protect. Nowhere in Defendants’ 107-page brief do they raise, let alone address, Plaintiff Children’s claims that the collapse of the State’s child welfare system causes them injury in violation of their rights arising under the First, Ninth and Fourteenth Amendments to the United States Constitution, and federal common law, as set forth in the First, Second, Third, Fifth and Sixth Causes of Action in the Amended Complaint.1 Instead, Defendants claim that they are legally unaccountable to Plaintiff Children — the approximately 3,000 abused and neglected Rhode Island children in the legal custody of DCYF — who suffer from the predictable and inevitable consequences of DCYF’s long-standing systemic deficiencies. Those consequences are significant and all too often irreparable. They are caused by nothing less than Defendants’ failure to meet their legal obligations to the children
1 In their Memorandum of Law in Support of their Motion to Dismiss, Defendants request dismissal of the entire Amended Complaint under Rules 12(b)(1) and 12(b)(6) (Defs.’ Mem. at 5-6), yet their Memorandum only presents arguments for dismissal of the Fourth Cause of Action on Rule 12(b)(6) grounds. (Defs.’ Mem at 89-106.) In the actual Motion to Dismiss that their memorandum supports, Defendants fail to move to dismiss any claim in Plaintiff Children’s Amended Complaint under Rule 12(b)(6).
1

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they are mandated to protect. Because of Defendants’ actions in administering this executive branch agency, Plaintiff Children have been abused and neglected while in state custody at a rate higher than in any other state in the country. Because of Defendants’ failures, Plaintiff Children are repeatedly shuffled between their parents’ homes and foster care, and among foster homes and expensive, inappropriate institutions, causing emotional harm and needlessly placing them at risk of further physical abuse. Defendants’ actions also cause children to linger unnecessarily in costly state custody without receiving necessary services to meet their mental health and developmental needs or to provide them with a permanent family. These violations of Plaintiff Children’s federal rights and the resulting harm to these children cannot be remedied without overall systemic reform of the Rhode Island child welfare system.
Defendants attempt to avoid responsibility for their stark failures to meet their legal obligations to Plaintiff Children, yet those obligations fall squarely within the purview of the executive branch. Defendants’ invitation to this Court to abdicate its responsibility to adjudicate Plaintiff Children’s claims rests on misstatements of the operative legal standards and ignores relevant Supreme Court, First Circuit and other federal district court authority. This Court should reject Defendants’ challenge to the Named Plaintiff Children’s Next Friends because the Next Friends meet all the requirements for representing the children on whose behalf they appear and because, even if they did not, dismissal is still not warranted as the remedy would be to replace them with other Next Friends. This Court should also deny Defendants’ request that it abstain under the Younger doctrine. Younger abstention is inappropriate here because: (1) Plaintiff Children’s Amended Complaint poses no threat to comity, as Rhode Island
2

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has voluntarily submitted itself to federal oversight of its child welfare system; (2) consistent with the First Circuit’s decision in Río Grande, the instant proceeding does not impinge on any state enforcement actions or interfere with Family Court proceedings; and (3) there are no ongoing state court proceedings that implicate important state interests and in which Plaintiff Children have an adequate opportunity to raise their federal claims. Defendants also seek to invoke the Rooker-Feldman abstention doctrine to shield their conduct from this Court’s review, but that doctrine does not apply here; Plaintiff Children are not losing parties to a state court action and are not requesting this Court to review and reject any state court judgment. Finally, this Court should deny Defendants’ request to dismiss Plaintiff Children’s federal statutory claims because, as the Court of Appeals for the First Circuit and many other federal courts have held, the statutes on which Plaintiff Children rely are intended to benefit precisely these children and are privately enforceable.
Because Plaintiff Children are properly before this Court to vindicate their wellestablished federal constitutional and statutory rights, they respectfully request that this Court deny Defendants’ Motion to Dismiss in its entirety.2
2 Plaintiffs agree to withdraw the claims of three of the original Named Plaintiffs -- Briana, Alexis, and Clare H. -- since they have been adopted and are no longer members of the putative class.
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BACKGROUND DEFENDANTS ARE LEGALLY RESPONSIBLE FOR THE CARE AND CUSTODY OF PLAINTIFF CHILDREN, AND THE NAMED PLAINTIFF CHILDREN’S INJURIES ARE THE DIRECT RESULT OF DEFENDANTS’ ACTIONS AND INACTIONS
Defendants are mandated by Rhode Island statute to protect and promote Plaintiff Children’s well-being. See R.I. Gen. Laws § 42-72-2.3 Defendants contend that the Family Court, and not Defendants, has the “ultimate authority” for Plaintiff Children’s placement, care and treatment. (Defs.’ Mem. at 56.) However, the Rhode Island Family Court’s role in approving or disapproving Defendants’ actions concerning Plaintiff Children in no way diminishes or replaces Defendants’ numerous obligations to the children. As the statutes themselves demonstrate, the day-to-day obligations to Plaintiff Children rest with executive branch Defendants alone. These executive branch responsibilities, not the review functions of the Family Court, are the subject of this case.
The Rhode Island General Assembly has charged DCYF with numerous responsibilities as the legal custodian and guardian of the abused and neglected children in its care. First and foremost, Plaintiff Children have been committed to DCYF’s “care, custody and control.” R.I. Gen. Laws § 40-11-12; accord R.I. Gen. Laws §§ 14-1-34, 141-35. DCYF is statutorily mandated to develop services, the purpose of which is “to ensure the opportunity for children to reach their full potential.” R.I. Gen. Laws § 42-725 (emphasis added). DCYF is further exclusively responsible for:
3 Defendants also have bound themselves to federal law that mandates certain responsibilities. See infra Part III A.
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 19 of 97 PageID #: 731
• Ensuring that the children in DCYF’s care are safe;4
• Providing care and services to the children in DCYF custody;5
• Achieving permanency for each child in DCYF custody;6
• Protecting children while investigating reports of abuse or neglect;7 and
• Providing transition services for children exiting care.8
DCYF Director, Defendant Martinez, is mandated to fulfill additional obligations,
including:
4 DCYF is required to license, approve, monitor, and evaluate all residential and nonresidential child care institutions, group homes, foster homes and programs, R.I. Gen. Laws §§ 42-72-5(b)(7), 42-72.1-1 et seq.; to pay for the support and maintenance of any child placed by DCYF in an institution, R.I. Gen. Laws § 42-72-13; and to ensure that staff and agencies with which DCYF contracts restrain children only when necessary, R.I. Gen. Laws § 42-72.9-7.
5 DCYF is required to provide protective services for children, R.I. Gen. Laws § 42-72-11; and to develop a service plan for each child in custody to determine the child’s treatment and placement, R.I. Gen. Laws § 42-72-10.
6 DCYF is required to ensure that each child’s service plan be geared to finding a permanent plan for the child within a time frame of one year, and require a review and evaluation for all children for whom a plan has been developed, R.I. Gen. Laws § 42-72-11; to develop a permanency plan, specifying the efforts to be made to support reunification with the child’s family or adoption, and file a request for a permanency hearing, at which DCYF shall present the permanency plan, R.I. Gen. Laws §§ 40-11-12.1, 40-11-12.2(a); to institute proceedings to legally free the child for adoption if the court does not direct foster care or reunification or where the child has been in custody for the last 15 of 22 months, R.I. Gen. Laws § 40-1112.1(e); to recruit adoptive families for those children for whom reunification is not an option, R.I. Gen. Laws § 15-7-7; to investigate any potential adoptive home, R.I. Gen. Laws § 15-7-11(a); and to make funds available to guardians and adoptive parents, R.I. Gen. Laws § 15-7-25; see also R.I. Gen. Laws § 40-11-12.3.
7 DCYF is required to immediately investigate all reports of abuse or neglect, R.I. Gen. Laws §§ 11-9-5.1, 40-11-3, 40-11-6, 40-11-7; to provide a medical examination for all children entering custody within 24 hours, R.I. Gen. Laws §§ 40-11-5(d), 40-11-6(c); and to petition the Family Court for a child’s removal from their parents/guardian where warranted, R.I. Gen. Laws § 40-11-7(c).
8 R.I. Gen. Laws § 14-1-6.
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• Ensuring that each child in DCYF custody receives “suitable treatment, rehabilitation, and care” by “pursuing the least restrictive placement,”9 and providing a program “for the placement, care, and treatment” of children committed to the custody of DCYF;10
• Administering all DCYF-run institutions and facilities;11
• Ensuring that each caseworker has a minimum of at least 20 hours of training per year;12
• Establishing facilities for emergency treatment, relocation and physical custody of abused or neglected children, including specialized foster family programs, day care services and group homes;13
• “[S]eek[ing], accept[ing] and otherwise tak[ing] advantage of all federal aid available;”14
• Establishing goals of the maximum number of children who will remain in foster care for a period in excess of two years;15
• Being responsible for the education of all children placed in DCYF’s custody; 16
• Ensuring that seriously emotionally disturbed children receive appropriate mental health services and developing a network of programs and services to meet the needs of those children;17
9 R.I. Gen. Laws § 42-72-4(b)(14). 10 R.I. Gen. Laws § 42-72-4(b)(17). 11 R.I. Gen. Laws § 42-72-4(b)(16). 12 R.I. Gen. Laws § 42-72-5(b)(10). 13 R.I. Gen. Laws § 42-72-5(b)(3); see also Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 190 (D.R.I. 2004) (citing statutory provision and noting that “DCYF then has wide discretion as to where to place the child.”). 14 R.I. Gen. Laws § 42-72-5(b)(16). 15 R.I. Gen. Laws § 42-72-5(b)(19). 16 R.I. Gen. Laws § 42-72-5(b)(22). 17 R.I. Gen. Laws § 42-72-5(b)(24).
6

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• Developing and maintaining a comprehensive continuum of care that is familycentered and community-based;18 and
• Creating a case management information system.19
Defendants’ argument that the Rhode Island Family Court has the primary or even
exclusive responsibility for supervision and care of the Plaintiff Children is contrary to
the mandates of Rhode Island law.20 The very nature of the Family Court’s reviewing
role assumes, at its core, DCYF’s exercise of its own authority. Defendants seek to
utilize the fact that they have abdicated the lawful exercise of this authority as support for
their argument that this authority lies elsewhere. Rhode Island law makes clear that it
does not.21
18 R.I. Gen. Laws § 42-72-5(b)(25).
19 R.I. Gen. Laws § 42-72-4(b)(15).
20 Defendants also attempt to evade their own responsibilities to Plaintiff Children by wrongly asserting that the Child Advocate failed to undertake her statutory obligations by not intervening in individual family court cases. However, Defendants’ duties are in no way lessened by the fact that the Rhode Island Child Advocate has her own duties with respect to these children. In fact, Child Advocate Alston, in carrying out her legal duty to vindicate the rights of Plaintiff Children, determined that Defendants’ constitutional violations are so egregious and widespread that bringing the instant action pursuant to her statutory obligations was the most appropriate course of action. (Alston Decl., Ex. 1 at ¶¶ 4-5.) The Child Advocate concluded that it would be impractical to appear in the Family Court proceedings on behalf of each child in DCYF custody, and that their rights would be better and more efficiently protected through a federal class action requesting system-wide relief. (Alston Decl., Ex. 1 at ¶¶ 4-6.)
21 The cases cited by Defendants regarding the Family Court’s authority are in fact regarding its power to make custody determinations and terminate parental rights, and do not compel a contrary conclusion. (Defs.’ Mem. at 52-56.) Rhode Island statute explicitly vests the Family Court with the authority to terminate parental rights, R.I. Gen. Laws § 15-7-7, and to “place the custody of the child in [DCYF] until such time as it finds that the child may be returned to the parents . . . under circumstances consistent with the child's safety,” R.I. Gen. Laws § 40-11-12(b); see also R.I. Gen. Laws §§ 14-1-32, 14-1-34 (determining custody of children). These two traditional enforcement powers of the Family Court are not actions that are the subject of this case and do not negate DCYF’s ultimate authority to be custodian of,
cont.
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As to the Named Plaintiff Children themselves, Defendants concede they are in “the care, custody and control of DCYF.” (Defs.’ Mem. at 9.) While Defendants offer a lengthy factual account of these children’s lives, purportedly to demonstrate that the Family Court has ultimate responsibility over these children, their interpretation is not borne out by the Family Court orders in each Named Plaintiff child’s case that Defendants have attached as exhibits in support of this contention. For example, there are simply no specific court orders that direct DCYF to move any of the Named Plaintiff Children through the numerous unsafe and unstable placements they have experienced.
Set forth in an Appendix, attached as Ex. 2, Plaintiff Children have compiled the factual scenarios as set forth by Defendants and compared them to the factual allegations from Plaintiff’s Amended Complaint, as well as to Defendants’ own exhibits. As demonstrated in the Appendix, Defendants’ exhibits fail to support Defendants’ contention that the Family Court has the “ultimate responsibility” for Plaintiff Children. Rhode Island and federal statutes, as well as these Family Court orders, in fact compel the conclusion that the executive branch Defendants are responsible for making the decisions and taking the actions necessary to protect the safety, well-being and permanency of the Named Plaintiff Children. Defendants have failed to do so.
cont. and provide supervision, services and care to, Plaintiff Children while they remain in state custody.
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ARGUMENT I. LEGAL STANDARD FOR A MOTION TO DISMISS
In reviewing a motion to dismiss, a court must accept as true all factual averments set forth in a complaint. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Defendants themselves concede that “[in] ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a Court must construe the complaint liberally, treat all wellpleaded facts as true and indulge all reasonable inferences in favor of the Plaintiff.” (Defs.’ Mem. at 56.) See also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).
The same is true as to a motion to dismiss under Rule 12(b)(6) for failure to state a claim. Wash. Legal Found. v. Mass. Bar Found., 993 F. 2d 962, 971 (1st Cir. 1993); Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir. 1992). A plaintiff’s threshold to defeat this motion is low, Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988), and Plaintiff Children’s claims are to be construed liberally at this stage in the proceedings. Barrios-Velazquez v. Asociación de Empleados del Estado Libre Asociado de P.R., 84 F.3d 487, 490 (1st Cir. 1996). A complaint should not be dismissed on this ground 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 (1957).
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II. THIS COURT HAS JURISDICTION TO ADJUDICATE PLAINTIFF CHILDREN’S CLAIMS, WHICH ARE BROUGHT BY PROPER NEXT FRIENDS Defendants incorrectly challenge this Court’s jurisdiction to hear this action,
arguing that the Plaintiff Children’s Next Friends lack standing. (Defs.’ Mem. at 83.) Whether the Next Friends are appropriate representatives pursuant to Rule 17(c) of the Federal Rules of Civil Procedure, however, is not a jurisdictional issue warranting dismissal. See Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 185-86 (D.R.I. 2004) (distinguishing between jurisdiction and standing); Gardner v. Parson, 874 F.2d 131, 140 (3d Cir. 1989) (“The purpose of Rule 17(c) is to further the child’s interest in prosecuting or defending a lawsuit . . . . [It] was not intended to be a vehicle for dismissing claims.”) (emphasis added).22 Defendants also object to the Next Friends who appear on behalf of the infant Plaintiff Children, arguing that the Next Friends have failed to demonstrate a sufficiently long-standing and close relationship to the Plaintiff Children and first-hand knowledge of their claims. However, this objection is not supported by either the text of Rule 17(c) or case law applying the Rule in substantially similar cases.
Plaintiff Children suffer from a double incapacity. First, they are infants in state custody who are subject to the control of their custodians against whom they seek to raise
22 Defendants do not challenge the Court’s subject matter and personal jurisdiction over Plaintiff Children’s claims, nor do they contest the Named Plaintiff Children’s standing. Such challenges would have been unavailing. See Office of the Child Advocate, 296 F. Supp. 2d at 185 (finding personal and subject matter jurisdiction in suit brought against DCYF on behalf of Rhode Island children in DCYF custody which asserted federal claims); see also Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *4 (E.D. Mich. Apr. 17, 2007) (holding that children in Michigan child welfare system had established standing to pursue injunctive relief against their state custodian where the complaint “alleges numerous systemwide failures in Michigan’s child welfare system that have caused, and will cause . . . actual, particularized harms to Plaintiffs who are in that child welfare system”).
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claims of illegal conduct. Second, because of that very conduct, and the dysfunction in the Rhode Island child welfare system, Plaintiff Children have been denied the opportunity to develop stable and long-standing attachments to adults. Defendants seek to capitalize on this situation by urging this Court to apply an improper standard for qualifying next friends.
In this case, the Child Advocate for Rhode Island is counsel for the Plaintiff Children. The statutory mandate of the Office of the Child Advocate is to pursue the legal claims of children in DCYF custody, including those of the Named Plaintiff Children. That duty arises from the very fact that these children do not have a network of adults willing and able to vindicate their rights. This suit is properly brought by Next Friends whom the Child Advocate, in fulfilling her mandate, has approved, and who have no suggested or actual motive other than to pursue the legal rights of the children they represent.
A. Plaintiff Children are Properly Represented by Next Friends Federal Rule of Civil Procedure 17(c) requires that an infant have a competent adult represent him or her in a federal action and provides that if the infant does not already have a representative such as a general guardian or conservator, then the infant may sue by a next friend or guardian ad litem.23 Plaintiff Children brought this action

23 Federal Rule of Civil Procedure 17(c) provides:

Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such

cont.

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through Next Friends who meet the standards of Rule 17(c) and were selected by the Child Advocate.
The Named Plaintiff Children have been removed from the legal custody of their biological parents and placed in the legal custody of Defendants. See R.I. Gen. Laws §§ 14-1-34 to 14-1-35; Defs.’ Exs. D-27, D-61, C-48, E-48, A-176, B-19 to 20. Since Plaintiff Children have brought suit challenging the actions of DCYF officials in their capacity as legal custodian, there is a clear conflict that makes any DCYF officials improper as the children’s representative for Rule 17(c) purposes in this proceeding. Similarly, the Plaintiff Children’s biological parents are not appropriate representatives, having each been adjudicated by the Family Court as not acting in the children’s best interest. (Defs.’ Exs. D-27, D-61, C-48, E-48, A-176, B-19 to 20.) In fact, the rights of David T.’s, Caesar S.’s and Danny and Michael B.’s parents have all been terminated. (See Defs. Exs. E-48, C-48, B-19 to 20.) Therefore, representation of these children through next friends is warranted. See Dev. Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982) (recognizing federal court authority to appoint next friend “‘when it appears that the minor’s general representative has interests which may conflict with those of the person he is supposed to represent’”) (quoting Hoffert v. General Motors, 656 F.2d 161, 164 (5th Cir. 1981)); Ad Hoc Comm. of Concerned Teachers v. Greenburgh #11 Union Free School Dist., 873 F.2d 25, 29-30 (2d Cir. 1989) (holding that suit on behalf of children was properly brought by next friends rather than by the children’s state custodian or biological parents); Rubin v. Smith, 882 F. Supp. 212, cont.
other order as it deems proper for the protection of the infant or incompetent person.
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216-217 (D.N.H. 1995) (holding that appointment of guardian was appropriate where
“‘minor’s general representative has interests which may conflict with those of the person [she] is supposed to represent’”) (citations omitted).24
While each of the Named Plaintiff Children has been represented by either a
guardian ad litem (GAL) or Court-Appointed Special Advocate (CASA) in her or his
individual Family Court reviews, Defendants present no legal authority to support their
proposition that the GALs and CASAs have the authority to bring suit outside the confines of their Family Court appointment.25 Moreover, to the extent that those Family
Court representatives have participated in or approved of the DCYF actions challenged in
this suit, they have, at a minimum, a potential conflict or appearance of conflict that
makes them unsuitable. See, e.g., Gardner, 874 F.2d at 138 (finding that conflict existed
necessitating appointment of next friend for plaintiff child whose state court
representative was defendant in federal lawsuit).
24 Incredibly, Defendants argue that siblings Tony and Sam M. as well as Deanna H. are most properly represented by their biological mothers, or that proper representation cannot occur absent their mothers’ consent. (Defs.’ Mem. at 85.) These children’s mothers, however, have been deemed unfit and custody has been transferred to DCYF, (Defs.’ Exs. D-27, D-61, A-176), rendering them per se inadequate representatives for Plaintiff Children and making their consent unnecessary. See Gardner, 874 F.2d at 139 (holding that infant’s grandmother was not appropriate representative because Family Court had removed child from grandmother’s care upon finding of dependency and/or neglect); In re Jane Doe, 533 A.2d 523, 526-27 (R.I. 1987) (finding that DCYF and not mother was appropriate decision-maker for young adult committed to custody of DCYF). Current foster parents of Plaintiff Children, staff in institutions where they reside, and caseworkers for DCYF or an agency that contracts with DCYF, all suffer the same actual or potential conflict, since the interests of all such individuals do not necessarily coincide with and may in fact conflict with the best interests of the Plaintiff Children. 25 “A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent an infant . . . in that particular litigation, and the status of guardian ad litem exists only in that specific litigation in which the appointment occurs.” Black’s Law Dictionary 706 (6th ed. 1990) (emphasis added).
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Furthermore, nothing in the express language of Rule 17(c) or case law interpreting it precludes plaintiffs who have specific representation in a state court proceeding from appearing with different representation in an independent federal court case. See generally 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1570 (3d ed. 2005) (noting that “implicit” in Rule 17(c) is that a general representative may be replaced for purposes of federal litigation).26 The mere existence of alternative individuals who might also have appeared as next friends casts no doubt on the appropriateness of the specific Next Friends that were chosen here. See Bowen v. Rubin, 213 F. Supp. 2d 220, 226-27 (E.D.N.Y. 2001) (holding that existence of kin or close friends who “might perhaps serve as better representatives” was not grounds for rejecting proposed next friends); Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 265123, *9 (S.D.N.Y. May 22, 1998) (recognizing that possibility of minor having blood relatives or close friends was not sufficient basis for substituting those individuals as next friends).
B. Plaintiff Children’s Next Friends are Appropriate The district court has “substantial discretion to decide who will act in the child’s best interests.” Gardner, 874 F.2d at 139; accord Dev. Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982) (recognizing discretion of district court to appoint next friends). In the child welfare context, “[t]here are no special requirements
26 There is also no evidence that the individual GALs or CASAs appointed for the Named Plaintiffs’ Family Court proceedings would be willing to serve as next friends in this action, as Defendants suggest. Furthermore, although Defendants imply that the CASAs and GALs would necessarily have developed relationships with the children they represent in Family Court, the GAL for at least one of the Named Plaintiffs who has been in custody for many years had, at the time the Complaint was filed, never met the child. (Alston Decl., Ex. 1 at ¶ 8.)
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for the person suing as next friend” pursuant to Rule 17(c). Marisol A., 1998 WL 265123, at *9 (quoting 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1572 (2d ed. 1990)). The guiding principle is “the good faith of those claiming to speak for the infant,” and the court need only “satisfy itself that the ‘next friend’ is motivated by a sincere desire to seek justice on the infant’s behalf.” Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 30-31; accord Marisol A., 1998 WL 265123, at *9; see also Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. at 10 (S.D. Miss. Mar. 11, 2005) (order granting class certification) (rejecting defendants’ “suggestion” that next friends to class of plaintiff foster children were “uninterested or inexperienced” and finding that “each is generally knowledgeable about the nature and purpose of this litigation, and has a good faith interest in the named plaintiffs’ welfare and in the prosecution of this litigation”) (attached as Ex. 3).
Whether a Next Friend has a pre-existing relationship to one of the Named Plaintiff Children must properly be understood not as a prerequisite to representation, as Defendants suggest (see Defs.’ Mem. at 83-89), but rather as one means by which the Next Friend may demonstrate sufficient dedication to the best interest of the Plaintiff Child. See Bowen, 213 F. Supp. 2d at 227 (“a long-term relationship between a proposed next friend and the individual in need of representation is not required”). As noted by the Second Circuit in a case brought by children,
The term [“next friend”] is broad enough to include any one who has an interest in the welfare of an infant who may have a grievance or a cause of action . . . . The right of access to courts by those who feel they are aggrieved should not be curtailed; and this is particularly so in the instance of children who, rightly or wrongly, attribute such grievances to their very custodians. Those who propose to speak for the plaintiffs have manifested an interest in their welfare and should, under the circumstances here presented, be allowed to proceed.
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Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 31 (quoting Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y. 1976)).
The Named Plaintiff Children live unstable lives, in which DCYF has moved them from placement to placement and school to school. Many of these placements are short-term shelters and institutions far from the children’s original communities, schools, churches and relatives. (See Am. Compl. at ¶¶ 134-50.) Consequently, the Plaintiff Children have been denied the opportunity to develop long-term and ongoing relationships with a network of adults who are familiar with their circumstances and sufficiently dedicated to their best interests to make the significant commitment to serve as their next friend. See Dwayne B. , 2007 WL 1140920, at *3 (“Because the named Plaintiffs, like other foster children, have been removed from home and have had their preexisting ties to family and friends effectively severed, they have few, if any, significant relationships with adults who are suitable and willing to act as ‘next friends.’”); Marisol A., 1998 WL 265123, at *9 (recognizing that “[i]n an ideal world, there would be concerned family members or friends to represent these children in court,” but that given realities of New York City’s foster care system, plaintiffs’ next friends were adequate despite in some instances never having met the foster children they represented); Child, 412 F. Supp. at 599 (recognizing propriety of foster children being represented by next friend who had no previous relationship to them).
Defendants’ reliance on Whitmore v. Arkansas, 495 U.S. 149 (1990), where a purported next friend was found to have no standing to pursue a writ of habeas corpus on behalf of a competent adult who had not authorized such representation, is obviously misplaced. See Bowen, 213 F. Supp. 2d at 228 (“Whitmore clearly does not hold that it is
16

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improper to appoint [a person] with a limited prior or personal relationship with an individual to act as his next friend.”). Even Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007), the only other case relied upon by Defendants, noted that although the “significant relationship” requirement articulated in Whitmore has been extended to apply in some cases outside the habeas context, the realities of foster care may make such application inappropriate:
Foster children likely have no “significant relationship” with any adult who can or will litigate on their behalf. Parents, adult family members, close adult friends, and general guardians often do not exist, are unmotivated to help, are irresponsible, or have a personal interest in the outcome. Where child welfare reform is the issue, caseworkers have a conflict of interest, and foster parents and HHS compensated service providers (e.g. therapists) likely have a conflict of interest . . . . Ultimately, a foster child’s access to this forum may rest with private citizens . . . irrespective of whether they know the individual child they agree to represent. Carson P., 240 F.R.D. at 520 (referred to as “Foreman” in Defs.’ Mem.). The Rhode Island Child Advocate, with the statutory obligation to bring suit on behalf of the Named Plaintiff Children, selected the Next Friends after making diligent and extensive efforts to find next friends with close connections to the Named Plaintiff Children. (Alston Decl., Ex. 1 at ¶¶ 7-8.) Indeed, two of the three Next Friends do have established relationships with the Named Plaintiff Children they represent. Only one Next Friend, Professor Gregory Elliott, does not. Defendants have provided no basis for questioning that each of these adults is committed to and has a good-faith interest in the Named Plaintiff Children’s welfare, and there is no suggested or real conflict or personal agenda that threatens to subvert proper representation. Kathleen J. Collins has known Caesar S., for whom she appears as Next Friend, for over a year. She has been a Providence Department School Psychologist for the past
17

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17 years and first met Caesar when he began to attend one of the schools in which she works. (Am. Compl. at ¶ 55.) Although Caesar is only six years old, DCYF has already moved him through eight placements, some of these lasting less than a month. While Caesar has been placed by DCYF with his grandmother for the last two years, the Amended Complaint alleges that this home is inappropriate and unsafe, making Caesar’s grandmother an inappropriate candidate for Next Friend. (Id. at ¶¶ 44-47.) Caesar’s current school, where Ms. Collins works, has been one of the few constant elements in his life. Ms. Collins knows Caesar, and there is nothing in the record to cast doubt upon her asserted good-faith interest in pursuing his welfare through this litigation. See e.g. Olivia Y., No. 3:04CV251LN, slip op. at 9-10 (S.D. Miss. Mar. 11, 2005) (finding suitable next friend who was friend of foster parent who had previously cared for named plaintiff); Marisol A., 1998 WL 265123, at *9 n.14 (finding staff attorney who worked at teenage homeless shelter suitable next friend).
Mary Melvin appears on behalf of David T., for whom she was a foster mother for two years. David is currently 14 years old, has been in DCYF custody since the age of 2, and has been cycled through 14 separate placements, 12 of which have been shelters or other institutional settings and many of which have been out of state. (Am. Compl. at ¶¶ 56-66.) David called Ms. Melvin “Mommy Mary” during the time he lived with her, and her home was the only stable family living environment David has experienced in his entire life. (Id. at ¶ 58.) Ms. Melvin currently works as a Senior Companion in the Senior Companion Program at the Department of Elderly Affairs in Cranston, Rhode Island. She has served as a foster parent for Rhode Island children for at least 20 years, and on two separate occasions DCYF recognized her as Foster Parent of the Year. (Id. at
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¶ 69.) After DCYF removed David from her care and placed him in a series of temporary placements, Ms. Melvin maintained contact with him. (Id. at ¶ 58-62, 64, 66, 69.) Caring for David in her own home at DCYF direction for two years, remaining in contact with him for some time thereafter, and embracing the prosecution of this lawsuit on his behalf more than sufficiently demonstrate Ms. Melvin’s dedication to David’s welfare and her suitability as his Next Friend. Dwayne B., 2007 WL 1140920, at *3 (finding former foster mother of named plaintiff’s sibling suitable as next friend); Olivia Y., No. 3:04CV251LN, slip op. at 10 (S.D. Miss. Mar. 11, 2005) (finding former foster parent suitable as next friend).
Gregory Elliott, who serves as Next Friend to Sam and Tony M.,27 Deanna H.,28 and Danny and Michael B.,29 is an Associate Professor of Sociology at Brown University, where he has taught for over two decades. Professor Elliott is a social psychologist specializing in social development and has worked on issues of child maltreatment and adolescent development. There is nothing to suggest that Professor Elliott is motivated by anything but a genuine desire to seek justice on the children’s behalf, making him a
27 Sam and Tony M. have been in DCYF custody for eight years. Sam, now 12 years old, has lived in more than 10 different settings and Tony, now just 9 years old, is in his 12th placement. These siblings have been separated and placed in institutions, further isolating them. (Am. Comp. at ¶¶ 20-31.) 28 Deanna H. is an infant who has been in DCYF custody since she was born, but was not placed with any of her eight siblings. (Am. Compl. at ¶ 78.) Her current foster parents are plainly not suitable representatives because of their contractual relationship with DCYF and their potential interest in adopting Deanna that may or may not be in her best interest. 29 Danny and Michael B. are ages six and five, respectively. In the three years that they have been in foster care, Danny has been moved at least seven times, and Michael has been moved at least four. (Am. Compl. at ¶¶ 84-88, 92-93.) DCYF has currently separated these siblings, placing Danny in an out-of-state institution, and leaving Michael in the care of a greatgrandmother unsuited to safely or permanently care for him. (Id. at ¶¶ 88, 93.)
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proper Next Friend. As the Child Advocate has established, absent Professor Elliott’s participation, these children could not vindicate their federal civil rights as Named Plaintiff Children in this suit. (See Alston Decl., Ex. 1 at ¶ 7-8) (recounting dedicated efforts to identify next friends with relationship to children).
Through no fault of their own, each of the Named Plaintiff Children lacks a stable community of adults who are familiar with their case independent of DCYF and who could appear on their behalf in this action without potential conflict. For all the foregoing reasons, the Next Friends of the Named Plaintiff Children are appropriate to protect the rights they seek to vindicate. Should this Court find otherwise, the proper remedy would be the appointment of alternative next friends, not dismissal. III. THE COURT SHOULD NOT ABSTAIN UNDER YOUNGER v. HARRIS
Federal courts must exercise jurisdiction that is given to them. New Orleans Public Svc., Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 358 (1989). “[O]nly exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.” Id. at 368; see also Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 13 (1st Cir. 1990) (noting the “heavy presumption favoring the exercise of jurisdiction”). “[U]nless a case falls into one of those exceptions . . . federal courts have a ‘virtually unflagging obligation . . . to exercise the jurisdiction given them.’” Río Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). As this Court has noted:
The Supreme Court has stated that federal courts must proceed to judgment and give redress to parties before them in every case to which their jurisdiction extends. Therefore, abstention is “an extraordinary and
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narrow exception” to a federal court’s duty to hear controversies properly before it and only applies in exceptional circumstances. Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 189 (D.R.I. 2004) (citations omitted). Defendants attempt to persuade this Court to abstain from exercising its original jurisdiction over Plaintiff Children’s federal constitutional, statutory and common law claims pursuant to the inapplicable Younger v. Harris exception. 401 U.S. 37 (1971). Younger abstention is founded on the principle of federal-state comity − the principle that federal courts should not interfere with state functions. See Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975). In Younger, the Supreme Court, in order to protect the integrity of state criminal proceedings, prevented a state criminal defendant from seeking to enjoin his ongoing state criminal proceedings in federal court. Younger, 401 U.S. at 41. Younger has been extended beyond criminal proceedings to prevent a federal court from enjoining a pending state civil enforcement proceeding. Huffman, 420 U.S. at 603–7; see also Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31–32 (1st Cir. 2004). In this Circuit, a federal court may not abstain pursuant to the Younger doctrine unless the underlying rationale for its application exists. That rationale requires, first, that the state court proceeding at issue either be an “enforcement proceeding” or involve the “fundamental workings of the state’s judicial system,” and second, that “the relief asked of the federal court interfere with the state proceedings.” Río Grande at 70 (internal quotation omitted). If both of these threshold requirements are met, then the court proceeds to a further analysis called the Middlesex test. Under that test, a federal court must abstain where the relief sought interferes with (1) an ongoing state court proceeding that (2) implicates an important state interest and (3) affords the federal
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plaintiff an adequate opportunity to present his federal claims. Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 432 (1981).
Abstention under Younger is not appropriate here because, first, traditional federal-state comity concerns are not at issue; Plaintiff Children’s claims do not intrude upon the sovereign power of Rhode Island, which has submitted itself to federal oversight of its child welfare system by virtue of its voluntary participation in the federal Title IV-E funding program. Second, Plaintiff Children’s federal claims do not even meet the threshold concerns giving rise to abstention, as set forth in Río Grande, since this federal case does not in any way involve any state enforcement action or the fundamental interests of the state Family Court system, and the relief Plaintiff Children are seeking does not interfere with any individual Plaintiff Child’s Family Court proceedings. Finally, this case does not meet the three-part Middlesex test for Younger abstention.
A. Plaintiff Children’s Complaint Poses No Threat to Comity Because Rhode Island Has Voluntarily Agreed to Federal Oversight of its Child Welfare System in Exchange for Federal Funding
By exercising its jurisdiction over the instant case, this Court will in no way undermine or frustrate the traditional notions of federalism and comity upon which Younger abstention is based. Plaintiff Children’s Amended Complaint invades no preserved field of unfettered state sovereignty, but instead seeks prospective injunctive relief strictly over those state agency officials responsible for operating Rhode Island’s child welfare system in compliance with federal mandates.
As the First Circuit has already recognized, comity and federalism are not at issue when a challenged program “is jointly supported with federal and state funds and directly administered by state governments . . . . A state need not participate in [the program], but
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once a state decides to participate, it must comply with all federal requirements.” Río
Grande, 397 F.3d at 61; see also id. at 68–71 (finding that state’s compliance with federal
mandates in administering its joint federal-state Medicaid program was appropriate for
federal court adjudication and did not warrant abstention under Younger).
Completely analogous to Río Grande, the State’s administration of its child
welfare system under Title IV-E involves the same bargain of federal funding in
exchange for an agreement to abide by federal mandates. Congress enacted the Title IV-
E foster care program in 1980 based upon the carefully considered determination of
federal lawmakers that states were failing in their individual efforts to protect and care for
the nation’s foster children. As stated by the United States Department of Health and
Human Services (HHS) in its Program Regulation implementing Title IV-E in 1982:
The impetus behind the passage of [Title IV-E] . . . was the belief of Congress, and most State child welfare administrators, supported by extensive research, that the public child welfare system responsible for serving children, youth and families had become a receiving or holding system for children living away from parents rather than a system that assists parents in carrying out their roles and responsibilities and provides alternative permanent placement for children who cannot return to their own homes. Studies show that under current policies and procedures thousands of children are stranded in the public foster care system with little hope of being reunited with their families or having a permanent home through adoption or other permanency planning, thereby causing harm to the children and high costs to the States . . . . The passage and enactment into law of [Title IV-E] . . . demonstrates a Federal commitment to provide financial and technical assistance to States to make changes in their child welfare service systems.
Title IV-E Program Regulation ACYF-PR-82-02, issued Aug. 13, 1982. Rhode Island has voluntarily agreed to accept Title IV-E federal funding for the
administration of its child welfare system. In exchange for the uncapped flow of federal
entitlement dollars under Title IV-E, Rhode Island explicitly agreed “to administer the
[child welfare] program in accordance with the provisions of [its] State plan, Title IV-E
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of the Act and all applicable Federal regulations and other official issuances of [HHS].” Title IV-E Program Instruction ACYF-CB-PI-07-02, Attachment B – Title IV-E State Plan Pre-Print, issued Jan. 23, 2007 (attached as Ex. 4). Rhode Island has thus knowingly submitted to federal regulation and oversight, eliminating any alleged comity or federalism concerns.30 See Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *5 n.5 (E.D. Mich. Apr. 17, 2007) (“there are no ‘comity’ or ‘federalism’ concerns presented by this lawsuit because the State . . . has voluntarily agreed to federal oversight of its foster care system in exchange for federal funding”).
B. This Court Should Not Abstain Because, as a Threshold Matter, Río Grande Precludes the Application of Younger to Plaintiff Children’s Complaint 1. No State Enforcement Action is Implicated by This Federal Lawsuit
Younger abstention does not apply to this action, which exclusively seeks relief from state executive action. See NOPSI, 491 U.S. at 368. In NOPSI, a public utility brought parallel state and federal lawsuits seeking an injunction directing the New Orleans City Council to approve an electricity rate increase. The district court abstained from exercising its jurisdiction based upon Younger, and the Fifth Circuit affirmed. On writ of certiorari, the Supreme Court reversed, holding:
Although our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings, and even to civil proceedings involving certain
30 It is constitutionally permissible for Congress to regulate and limit the use of federal funds for state-administered social programs created under its Spending Clause power. See South Dakota v. Dole, 483 U.S. 203, 206–7 (1987); Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003); see also Mo. Child Care Ass’n v. Cross, 294 F.3d 1034, 1036 (8th Cir. 2002) (noting that Title IV-E was enacted by Congress pursuant to its Spending Clause powers and creates a joint federal-state child welfare program).
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orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions, it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States. Id. at 367–68 (internal citations omitted) (emphasis added). Because the ongoing state court proceeding in NOPSI involved judicial review of legislative action, rather than judicial enforcement of state law, Younger abstention did not apply. The First Circuit applied NOPSI’s holding in Río Grande, where a federally qualified health center (FQHC) brought suit in federal court against the Puerto Rico Secretary of Health for his failure to make payments pursuant to federal Medicaid requirements, seeking declaratory and prospective injunctive relief. The plaintiff and other FQHCs also had a pending suit in state court seeking, inter alia, retroactive damages for missed payments. On appeal, the First Circuit declined to abstain because “the ongoing state proceeding involved here is not the proper type of proceeding to require adherence to Younger principles.” Río Grande, 397 F.3d at 69. The state court proceeding was not a quasi-criminal (or at least ‘coercive’) state civil proceeding[] . . . brought by the state as [an] enforcement action[] against an individual. . . . [I]n fact [the federal plaintiff] filed suit [in state court] against the Secretary in order to force the Commonwealth to fulfill its federal statutory obligations. Nor [we]re the fundamental workings of the state’s judicial system (like its contempt process or method of enforcing judgments) put at risk by the relief asked of the federal court. Id. at 69–70.31 The court further explained:
31 There is no contention that the “workings of the state’s judicial system” are at all implicated by the relief sought in the instant lawsuit.
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Here, the state court action, like that in NOPSI, is judicial review of executive action, rather than an enforcement proceeding. As well, there was no administrative enforcement proceeding before the Commonwealth health agency that triggered the review. In fact there was no administrative proceeding at all involving [plaintiff]; the state and federal challenges are to the [state] Secretary of Health’s failure to implement a . . . [payment system], as federal law requires. The state proceedings here do not trigger Younger abstention requirements.
Id. at 70 (emphasis added). Accordingly, Younger was inapplicable. The First Circuit
did not even apply a further analysis, as enunciated in Middlesex, because the underlying
state court action was not an enforcement proceeding and therefore, as a threshold matter,
did not trigger the application of Younger. Id. at 68–71.
As in NOPSI and Río Grande, Plaintiff Children here do not seek to enjoin any
state court enforcement action. In Rhode Island, the Family Court conducts some
enforcement proceedings and holds regular periodic reviews concerning Plaintiff
Children but, like in Río Grande and NOPSI, Plaintiff Children are asking the federal
court to review executive actions, not to review any Family Court proceeding.32 Plaintiff
Children do not seek to overturn any Family Court decisions, but instead challenge the
decisions made by the executive agency regarding the children’s treatment, placement,33
32 The Rhode Island Family Court plays two distinct roles in the state’s child welfare system. First, upon petition by the State, the Family Court conducts enforcement proceedings under state law to determine whether a child is to be removed from his or her parents due to abuse or neglect and, later, whether to return the child to his or her parents or to terminate parental rights. See R.I. Gen. Laws §§ 40-11-12; 14-1-32; 15-7-7. Second, the Family Court conducts periodic hearings to review executive action by DCYF, as required under Titles IVB and IV-E, which mandate, inter alia, that the Family Court review each child’s permanency plan at least annually. See 42 U.S.C. §§ 622(b)(8)(A)(ii); 671(a)(16); 675(5)(C); see also R.I. Gen. Laws §§ 40-11-12.1, -12.2; R.I. R. Juv. P. 17. 33 Indeed, the Family Court is precluded by both state and federal law from having any direct placement or care responsibility for children in DCYF custody, so it is not responsible for the actions actually challenged by Plaintiff Children. See In re Stephanie B., 826 A.2d 985, 995 (R.I. 2003) (“[T]he Family Court . . . has no authority to order placement in a specific
cont.
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and services while in the state’s custody – decisions made outside the context of the state court proceedings, either the enforcement actions or the periodic reviews.34 Ensuring the
well-being of Plaintiff Children in the State’s care, custody and control is squarely the
responsibility of DCYF, not the Family Court. See Inmates of Boys’ Training Sch. v.
Affleck, 346 F. Supp. 1354, 1358 (D.R.I. 1972) (finding Younger abstention unwarranted
in institutional reform lawsuit that “d[id] not attack actions taken by the state legislature
or by the state judiciary. Primarily under attack [we]re conditions resulting from
decisions made in the administrative discretion of those defendants who are officials of
the Boys Training School.”); Office of the Child Advocate, 296 F. Supp. 2d at 192
(noting, in its review of validity of child welfare consent decree where children involved
were no longer in state custody and thus not subject of Family Court proceedings, that
“[e]ven if there were pending state proceedings,” Younger abstention would be
cont. facility”); In re Doe, 390 A.2d 390, 396 (R.I. 1978) (“Although [family] court may refer a juvenile to the appropriate state agency for treatment, the court does not have the authority specifically to select a given facility. The setting of priorities among those who are deemed to be suitable candidates for treatment is most suitably performed by the administrative agency rather than by a court.”) (emphasis added); Office of the Child Advocate, 296 F. Supp. 2d at 192 (noting that DCYF Director has “broad discretion granted to [her] by Rhode Island law after the Family Court assigns a child to state custody”); see also, e.g., Defs.’ Ex. C-7 (committing Named Plaintiff Caesar to the “Care Custody & Control Of DCYF Director”; handwritten: “disc[retion] to place”); Defs.’ Ex. D-54 (“DCYF has discretion as to placement” of Named Plaintiff Tony); Defs.’ Ex. E-6 (temporarily placing Named Plaintiff David in custody of DCYF “with discretion as to placement”); 45 C.F.R. § 1356.21(g)(3) (federal funding under IV-E “is not available when a court orders a placement with a specific foster care provider”). 34 Plaintiff Children do not make a single averment regarding any state court enforcement decision or action to remove a child from his or her birth parents, to terminate parental rights, or to enforce any other right regarding an individual parent-child relationship. Nor do Plaintiff Children seek to disturb any Family Court decision or action in any individual abuse-or-neglect periodic review.
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unwarranted since the Court would simply be reviewing executive agency action and any
review would “not require this Court to direct or review the Family Court’s decisions”).
The First Circuit has never applied Younger abstention where, as here, the state
court proceeding involved simply a review of executive action. In fact, the only cases
where the First Circuit has abstained on Younger grounds have involved claims that
would review or enjoin clear-cut enforcement proceedings.35 While Defendants cite
Rossi v. Gemma, 489 F.3d 26 (1st Cir. 2007), there too, consistent with all other First
Circuit cases, the First Circuit abstained because it was asked to consider claims to
35 See Maymó-Meléndez v. Alvarez-Ramírez, 364 F.3d 27 (1st Cir. 2004) (abstaining where plaintiff brought federal action to enjoin suspension of horse training license under state administrative proceedings); Esso Std. Oil Co. v. Cotto, 389 F.3d 212 (1st Cir. 2004) (upholding grant of abstention under Younger, where complaint sought to enjoin ongoing state board proceedings); Mandel v. Town of Orleans, 326 F.3d 267, 273 (1st Cir. 2003) (vacating on Younger abstention grounds order enjoining police from detaining plaintiff where plaintiff was serving home detention sentence pursuant to state court order on civil contempt); In re Justices of the Superior Court Dep’t of the Mass. Trial Court, 218 F.3d 11 (1st Cir. 2000) (abstaining from considering pretrial habeas corpus petition where state court criminal proceedings were ongoing); Brooks v. N.H. Supreme Court, 80 F.3d 633 (1st Cir. 1996) (abstaining pursuant to Younger from suit seeking to enjoin (a) paternity suit, (b) state court suit initiated by federal plaintiff, and (c) contempt proceedings where plaintiff challenged attorney disciplinary proceedings); Casa Marie, Inc. v. Superior Court of P.R., 988 F.2d 252 (1st Cir. 1993) (abstaining under Younger where state civil contempt proceeding regarding residential facility for elderly handicapped individuals was ongoing); Bettencourt v. Bd. of Registration in Med. of Mass., 904 F.2d 772 (1st Cir. 1990) (abstaining under Younger where enforcement proceeding regarding revocation of medical license was ongoing); Duty Free Shop, Inc. v. Administración de Terrenos de P.R., 889 F.2d 1181 (1st Cir. 1989) (abstaining under Younger where eminent domain proceedings in state court were ongoing); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984) (abstaining from considering writ of habeas corpus to enjoin state court murder proceedings); United Books, Inc. v. Conte, 739 F.2d 30 (1st Cir. 1984) (abstaining under Younger from enjoining future criminal prosecutions); Jackson v. Garcia, 665 F.2d 395, 396 (1st Cir. 1981) (abstaining under Younger where plaintiff sought to enjoin pending criminal trial in state court); Diaz v. Stathis, 576 F.2d 9 (1st Cir. 1978) (affirming dismissal of claims brought by state court defendants that jury lists were compiled unconstitutionally); Douglas v. N.H. Sup. Ct. Prof’l Conduct Comm., 187 F.3d 621 (unpublished table decision), at *1 (1st Cir. 1998) (affirming dismissal where plaintiff sought to enjoin the professional conduct committee from instituting disciplinary proceedings against her; finding that “the disciplinary investigations . . . are the sort of judicial proceedings that warrant abstention”) (attached as Ex. 5).
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review or enjoin a state court enforcement proceeding. 489 F.3d at 37 (abstaining pursuant to Younger from claims challenging enforcement of mechanics’ lien).
Here, none of the Plaintiff Children’s claims arise from any proceedings of the Rhode Island Family Court, including its enforcement proceedings. Each and every one of Plaintiff Children’s claims alleges violations of executive agency decisions only. Accordingly, under NOPSI and Río Grande, abstention is not warranted here.
2. The Relief Sought Will Not Interfere With Any Family Court Proceedings
Another threshold issue in the First Circuit, before a district court can even reach the Middlesex test, is whether the prospective injunctive relief Plaintiff Children seek will unduly interfere with their Family Court proceedings. See Rossi, 489 F.3d at 35 (finding interference a threshold issue); Río Grande, 397 F.3d at 70 (noting that, for Younger purposes, interference is “usually expressed as a proceeding that either enjoins the state proceeding or has the practical effect of doing so”) (internal quotation omitted). Here, the answer is clearly that no such state court injunction or interference is sought. Younger does not apply where the federal action “is merely related to issues involved in a pending state family court proceeding.” United States v. Lewis, 936 F. Supp. 1093, 1108 (D.R.I. 1996).
Plaintiff Children do not in any way seek to enjoin any proceeding or have the federal court exercise any direct or indirect control over the Family Court, or over the judges who preside there. Plaintiff Children seek systemic injunctive relief, meant to remedy class-wide constitutional and federal law violations by the executive branch. No systemic, overall relief of this type or magnitude will in any way “enjoin” the Family
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Court hearings that merely review an individual child’s status and which will continue without interference, regardless of the relief granted in this suit.36
In similar cases challenging the system-wide administration of child welfare systems, federal courts around the country have found no interference and rejected the application of Younger. See, e.g., L.H. v. Jamieson, 643 F.2d 1351, 1354 (9th Cir. 1981) (finding Younger abstention unwarranted because relief sought did not “have the wholly disruptive consequences associated with enjoining a state judicial proceeding”); Dwayne B., 2007 WL 1140920, at *6 (finding that relief sought would not interfere because “[t]he relief sought here is not directed at the juvenile courts. It is directed at the executive branch.”); Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. at 2 (S.D. Miss. Aug. 29, 2006) (“the court is not persuaded that any relief which this court may grant, in the event plaintiffs were to establish a constitutional violation, would necessarily impinge on the jurisdiction and prerogative of the state’s Youth Courts.”) (emphasis added) (attached as Exhibit 7); Olivia Y. v. Barbour, 351 F. Supp. 2d 543, 570 (S.D. Miss. 2004) (stating that the court would be “hard-pressed to conclude that any specific relief plaintiffs seek in this action would necessarily interfere with ongoing youth court proceedings”); Kenny A. v.
36 As cited by Office of the Child Advocate, 296 F. Supp. 2d at 191, the Tenth Circuit in Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002), found that procedural provisions of a child welfare consent decree posed no problem under Younger, where the consent decree concerned a class of children in foster care who had open state Children’s Court cases. Joseph A., 275 F.3d at 1273. The Tenth Circuit found that those provisions, governing training of social workers, the development of a computerized management information system, and qualifications for social workers, did not appear to risk interference with state court proceedings. Id. Notably, on remand, the district court specifically found that those provisions, as well as all consent decree provisions concerning case planning and review and adoption processes, did not interfere with the decisions in the Children’s Court and therefore did not implicate Younger. Joseph A. v. N.M. Dep’t of Human Servs., No. 80-623 JC/DJS, slip op. at 7–23 (D.N.M. Jan. 16, 2003) (attached as Exhibit 6).
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Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003) (finding no interference because “the declaratory and injunctive relief plaintiffs seek is not directed at their [periodic juvenile court] review hearings, or at Georgia’s juvenile courts, juvenile court judges, or juvenile court personnel. Rather, plaintiffs seek relief directed solely at executive branch defendants to remedy their alleged failures as plaintiffs’ custodians.”); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn. 2000) (observing that “nothing about this litigation seeks to interfere with or enjoin” ongoing state juvenile proceedings); Marisol A. v. Giuliani, 929 F. Supp. 662, 687 (S.D.N.Y. 1996) (declining to abstain under Younger and Burford and noting in its rejection of Burford abstention that “plaintiffs neither ask the Court to make individualized findings of fact on plaintiffs’ allegations nor to interfere with or alter the underlying policies of [the agency]”); see also Nicholson v. Williams, 203 F. Supp. 2d 153, 231 (E.D.N.Y. 2002) (declining to abstain pursuant to Younger in case challenging child welfare agency’s policy of finding children neglected where parent was victim of domestic violence and finding no interference where “the injunctive relief this court grants targets general [agency] practices”).
Ignoring this extensive body of case law, Defendants rely on a single nonbinding district court opinion from another circuit, Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007). However, Carson P. was wrongly decided and does not compel abstention here. The Carson P. court abstained pursuant to Younger because the court speculated as to the form an injunction might ultimately take and, based on that speculation alone, found possible future interference with state court proceedings.37 Speculation as to relief
37 Defendants similarly speculate, without any basis, as to the form of relief sought by Plaintiff Children in the present case. (Defs.’ Mem. at 62–63.)
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is improper and premature where it cannot be shown that a federal order will necessarily interfere with ongoing state proceedings. See Olivia Y., 351 F. Supp. 2d at 570 (declining to abstain where “it [wa]s not apparent that all the relief plaintiffs might request would interfere . . . with ongoing youth court proceedings”); Kenny A., 218 F.R.D. at 286 n.5 (noting that although “precise relief sought by plaintiffs remains somewhat unclear,” nonetheless, “specific relief can be crafted that will not interfere with state court proceedings”). Numerous consent decrees have been entered regarding precisely these systemic problems without triggering Younger abstention. See supra note 36 and pp. 3031.
Moreover, the Carson P. court had already declined to certify a class and, disregarding the weight of authority cited above, relied on 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), and J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999), both of which are inapposite to the case at bar. In 31 Foster Children, the Eleventh Circuit found that the plaintiffs sought nothing less than to “have the district court appoint a panel and give it authority to implement a system-wide plan to revamp and reform dependency proceedings in Florida, as well as the appointment of a permanent children’s advocate to oversee that plan.” 329 F.3d at 1279. The court upheld Younger abstention after concluding that the plaintiffs sought a federal court takeover, not of the executive agency, but of the Florida dependency court system itself. No such relief is sought in the instant lawsuit or alleged by Defendants.
31 Foster Children was never certified as a class action, thus raising the same problem that the relief ordered on behalf of the individual named plaintiffs in the federal lawsuit and the relief granted by the relevant juvenile courts might conflict. This Court
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has already distinguished 31 Foster Children and found that the federal judicial review of DCYF executive action, at least in the context of a consent decree, does not implicate Younger. Office of the Child Advocate, 296 F. Supp. 2d at 191-92 (“Simply put, this Court’s enforcement of the [consent decree] does not involve federal review of an essential part of state proceedings and does not raise the federalism concerns implicated by the Younger abstention doctrine.”). The Court found that even if children affected by that case had still been the subjects of pending state court proceedings, which they were not, federal court review would “not require this Court to direct or review the Family Court’s decisions. Rather, this Court will . . . review the actions of DCYF, an agency of the state executive branch.” Id. at 192.
In J.B., a putative class of developmentally disabled children filed suit against various New Mexico state agency officials employed by at least three separate state agencies. The district court denied class certification and dismissed the individual named plaintiffs’ lawsuit on Younger abstention grounds. J.B., 186 F.3d at 1283. The Tenth Circuit affirmed the denial of class certification and dismissed a number of the individual named plaintiffs’ claims as moot. Id. at 1290. It was at this point – when only three individual plaintiffs remained – that the Tenth Circuit abstained on Younger grounds. Id. at 1293. The Tenth Circuit determined that the district court’s consideration of the individual claims of the three remaining named plaintiffs was likely to interfere with the children’s ongoing proceedings before the New Mexico Children’s Court, given the drastically narrowed focus of the complaint and limited scope of potential injunctive relief. Permitting the case, as limited, to go forward in the district court would, in the Tenth Circuit’s view, “place[] the federal court in the role of making dispositional
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decisions such as whether to return the child to his parents in conjunction with state assistance or whether to modify a treatment plan.” Id. at 1292.38
This case, by distinction, remains a putative class action, filed on behalf of a class of thousands of abused and neglected children in state custody, seeking systemic classwide equitable relief that will not impinge on any state court proceedings as was feared in J.B., 31 Foster Children, and, wrongly, Carson P. Any injunctive relief ultimately obtained by Plaintiff Children here would not affect dispositions, custodial determinations, or the substance of any individual child’s case plan, because the comprehensive relief would be fashioned to address systemic failings in the Rhode Island child welfare system as operated by Defendants. Nor would it require the federal court to oversee treatment of individual foster children. “[U]nlike the circumstances presented in J.B., any prospective injunctive relief granted by this Court will not threaten interference with any particular Plaintiff’s ongoing juvenile court proceedings or existing juvenile court procedures.” Dwayne B., 2007 WL 1140920, at *7. The system-wide relief requested here will in no way interfere with any ongoing Family Court proceedings, and accordingly abstention is not warranted.
38 Notably, the Tenth Circuit subsequently decided Joseph A., 275 F.3d 1253, see note 8, infra, addressing systemic child welfare remedies that might not interfere with the state court proceedings and therefore would not implicate Younger. For a full discussion of the distinction between the Tenth Circuit’s refusal to reverse as an abuse of discretion the district court’s failure to certify a class in J.B., and the appropriateness of certifying a class in the present case, see the discussion at pp. 7–10 of Plaintiff Children’s Reply to Defendants’ Objection to Plaintiff Children’s Motion for Class Certification and Appointment of Class Counsel.
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C. Abstention is Not Warranted Under the Middlesex Test Even if the Court were to look beyond the threshold defects addressed above, which, standing alone, defeat Defendants’ request for abstention, Younger abstention is not warranted here because the three-part Middlesex test is not met: the injunctive relief sought does not interfere with (1) ongoing state court proceedings that (2) implicate an important state interest and (3) in which there is an adequate opportunity for the federal plaintiffs to raise their federal claims. Middlesex, 457 U.S. at 432. Only if all three prongs are met is abstention appropriate. As none of the three prongs is met here, the Court should not abstain.
1. The Family Court Proceedings are Not Ongoing Proceedings Within the Meaning of Younger
In support of abstention, Defendants argue first, that there are ongoing Family Court proceedings for the seven Named Plaintiff Children (Defs.’ Mem. at 61) and, second, that this federal lawsuit would interfere with those proceedings. However, those Family Court proceedings, which are mandated by federal law, are not “ongoing” within the meaning of Younger, but are simply isolated points at which the Family Court “reenters the proceeding” after awarding custody of the child to DCYF.39 Cf. Office of the Child Advocate, 296 F. Supp. 2d at 191 (discussing Rhode Island Family Court proceedings in child welfare cases and noting that Family Court re-enters proceedings upon motion to modify or vacate custody arrangements). This is quite distinct from the ongoing unitary state criminal court proceedings or coercive civil enforcement proceedings where Younger abstention in a federal case is appropriate. It is notable that 39 R.I. Gen. Laws § 40-11-12.1 (hearing to review permanency plan); R.I. R. Juv. P. 17 (court review of child’s care and treatment plan).
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these federally required regular state family court reviews existed in every child welfare
class action challenge where the application of Younger was rejected by a circuit or
district court.40 Clearly the existence of state judicial safeguards required by the federal
government through its oversight of Rhode Island’s Title IV-E program does not require
abstention under Younger, as Defendants suggest. The sound reasoning in those cases
where abstention was rejected compels the conclusion that abstention is not necessary
here.
40 See LaShawn A. v. Kelly, 990 F.2d 1319, 1322–24 (D.C. Cir. 1993) (rejecting application of Younger abstention despite family court neglect proceedings, review hearings, and termination proceedings); L.H. v. Jamieson, 643 F.2d 1351, 1354 (9th Cir. 1981) (finding Younger abstention unwarranted where abused and neglected minor plaintiffs were not seeking to enjoin plaintiffs’ juvenile court proceedings or prohibit state officials from enforcing any state law); Dwayne B., 2007 WL 1140920, at *5–7 (rejecting Younger abstention in challenge to administration of Michigan’s child welfare system where relief “will not require ongoing federal court interference with the daily operation of Michigan’s juvenile courts.”); Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. at 2 (S.D. Miss. Aug. 29, 2006) (denying renewed motion for Younger abstention where district court was “not persuaded” that all possible relief it might enter would “necessarily” interfere with Mississippi youth court proceedings) (Exhibit 7); Olivia Y. v. Barbour, 351 F. Supp. 2d at 570 (S.D. Miss. 2004) (rejecting motion for Younger abstention where court was “hardpressed to conclude” that any relief sought by plaintiff children would necessarily interfere with ongoing youth court proceedings); Kenny A. v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003) (finding Younger abstention improper because relief sought was directed solely at executive branch officials and would not necessarily interfere with juvenile court review hearings); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn. 2000) (refusing to abstain under Younger where “nothing about this litigation seeks to interfere with or enjoin” “ongoing and pending state proceedings concerning individual [plaintiff] foster children”); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 514 (D.N.J. 2000) (refusing to apply Younger to class challenge of New Jersey’s child welfare system); Marisol A. v. Giuliani, 929 F. Supp. at 688–89 (S.D.N.Y. 1996) (finding Younger abstention inapplicable where “defendants do not refer this Court to any pending state proceeding in which plaintiffs will have the opportunity to present the[ir] federal claims”); Baby Neal v. Casey, 821 F. Supp. 320, 332–33 (E.D. Pa. 1993) (same), rev’d on other grounds, 43 F.3d 48 (3d Cir. 1994).
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2. Plaintiff Children’s Claims Do Not Intrude Upon Any Exclusive Area of Important State Interest
Regarding the second Middlesex prong, Defendants cursorily state that “[t]here
does not seem to be a dispute that the child welfare and its foster program [sic] implicate
an important state interest,” (Defs.’ Mem. at 68), but fail to acknowledge that the
administration of a child welfare system under Title IV-E is not an exclusive area of
important state interest. Both the federal and state governments have interests in the
administration of Rhode Island’s joint federal-state child welfare program, as explained
in section Part III A, supra. Cf. Río Grande, 397 F.3d at 61 (Younger abstention not
warranted although federal lawsuit challenged Puerto Rico’s operation of its own health
care system, where Puerto Rico had elected to accept federal Medicaid funding in return
for agreeing to operate its health system in accordance with federal law and with federal oversight).41 As this Court has noted in a related context, Rhode Island’s “interest in the
administration of its child welfare system . . . does not rise to the level of a special
sovereignty interest.” Office of the Child Advocate, 296 F. Supp. 2d at 189 (considering exception to sovereign immunity).42
41 The fact that the state court proceedings at issue are simply judicial review of executive action also militates against finding an important state interest that justifies abstention. In Rivera-Puig v. Garcia-Rosario, 983 F.2d 311 (1st Cir. 1992), the First Circuit declined to abstain under Younger where a newspaper reporter challenged a rule that closed preliminary criminal hearings. 983 F.2d at 314–15, 319–20. The court found Younger inapplicable because there were no ongoing state proceedings, but also noted: “Because the [state court] proceeding is not a criminal or civil enforcement case, and it is not ‘uniquely in the furtherance of the state courts’ ability to perform their judicial functions,’ we doubt that the present case implicates the type of important state interest contemplated in Middlesex . . . .” Id. at 319 n.13 (quoting NOPSI, 491 U.S. at 368). 42 Even where there are issues of particular state sensitivity, abstention is not warranted. In Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004), this Court found that, in the case of the nightclub fire in Rhode Island that left 100 dead and 200 injured, many of whom were
cont.
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While the State may have an exclusive interest in family relations, family law is not at issue in the instant lawsuit.43 What is at issue is Defendants’ failure to operate a constitutionally and statutorily adequate child welfare system, which is not a unique state interest. That Plaintiff Children solely assert federal claims also weighs heavily against surrender of federal jurisdiction. See Cruz v. Melecio, 204 F.3d 14, 25 (1st Cir. 2000).
3. Plaintiff Children Do Not Have an Adequate Opportunity to Present Their Federal Claims in Their Family Court Proceedings
Under the final Middlesex prong, plaintiffs must also have an adequate opportunity to present their federal claims in the state court proceeding. Middlesex, 457 U.S. at 432. “Younger abstention depends on the ability of the state tribunal to adjudicate the federal claims and defenses.” S. Union Co. v. Lynch, 321 F. Supp. 2d 328, 337 (D.R.I. 2004) (citing Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996)). The Family Court is not a forum in which Plaintiff Children can adjudicate or remedy the systemic constitutional violations that are harming them, and thus abstention is improper.
Although the Family Court conducts periodic reviews of individual foster care cases, as required by federal law, those reviews are not in a forum in which remedies can
cont. Rhode Island citizens, “a state court’s special sensitivity to particular issues is not a just cause for federal abstention.” 308 F. Supp. 2d at 65 (citing Guiney v. Roache, 833 F.2d 1079, 1085 (1st Cir. 1987)). 43 But cf. Moore v. Sims, 442 U.S. 415, 423–35 (1979) (5-4 decision) (finding abstention appropriate where plaintiffs challenged their children’s removal into state custody and sought to enjoin state court abuse-and-neglect enforcement proceeding). In the instant lawsuit, Plaintiff Children do not seek to enjoin any state court proceeding or to overturn the judgment of a state court. See Marisol A., 929 F. Supp. at 688 (distinguishing Moore and noting that “plaintiffs in child welfare cases where courts have abstained under Younger have all been enmeshed in state court proceedings and have attempted to use the federal courts to attack collaterally state court rulings”).
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be ordered that would correct the fundamental systemic failings and decision-making within DCYF that continue to impair the rights of abused and neglected children in DCYF custody. As recognized by numerous federal courts, individually focused foster care review proceedings are a manifestly inadequate forum in which to raise systemic constitutional challenges to a state’s child welfare system. See, e.g., LaShawn A. v. Kelly, 990 F.2d 1319, 1322–23 (D.C. Cir. 1993) (holding that family court neglect proceedings, periodic review hearings, and termination proceedings are inadequate for raising multifaceted, constitutional class action challenge to administration of child welfare system); Dwayne B., 2007 WL 1140920, at *6 (holding that “there is no pending judicial proceeding which could serve as an adequate forum for the class of children in this case to present its multifaceted request for broad-based injunctive relief based on the Constitution and on federal and state law”) (internal quotation omitted); Brian A., 149 F. Supp. 2d at 957 (noting that “[a]lthough technically Plaintiffs could raise constitutional questions in their individual juvenile proceedings,” no such proceeding could serve as an adequate forum for broad injunctive relief sought by class-action plaintiffs); People United for Children v. City of New York, 108 F. Supp. 2d 275, 291 (S.D.N.Y. 2000) (“the Court does not believe that the Family Court can adequately consider plaintiffs’ claims in the context of a multi-faceted lawsuit challenging a system-wide policy rather than [agency] actions in individual cases.”); see also L.H., 643 F.2d at 1354 (noting that plaintiffs’ claim was “not of a sort that would be presented during the normal course of a state proceeding”); Kenny A., 218 F.R.D. at 287 (noting that “plaintiffs’ very status as children combine[d] with their lack of adequate adult representation . . . create[s]
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insurmountable procedural obstacles [and] preclude[s] them from using the juvenile courts to protect their rights.”).44
The Family Court reviews also provide an inadequate forum because the Rhode Island Family Court has no direct authority to hear class action lawsuits.45 Any attempt
to obtain the sort of relief sought here in individual Family Court cases would require
each of the more than 3,000 individual children to bring, during their periodic Family
Court review hearings, identical federal constitutional, statutory and common law claims
seeking systemic relief. However, as this Court has found, “the desirability of avoiding
piecemeal litigation is entitled to ‘great weight’ in assessing the propriety” of abstention.
Colonial Penn Group, Inc. v. Colonial Deposit Co., 654 F. Supp. 1247, 1253 (D.R.I.
1987) (citing Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 309 (1st Cir. 1986), aff’d,
834 F.2d 229 (1st Cir. 1987)).
44 Moreover, the Family Court proceedings do not afford Plaintiff Children an adequate opportunity to raise their federal claims because the attorneys who represent them each carry an average caseload of 400 children. See R.I. Family Court - Overview, http://www.courts.state.ri.us/family/overview.htm (last visited Nov. 1, 2007). Plaintiff Children ask the Court to take judicial notice of these caseloads listed on the Rhode Island Family Court website. Those caseloads are comparable to the attorney caseloads in Georgia of approximately 500 children, which the Kenny A. court found to render representation per se inadequate because such caseloads “ma[ke] it impossible for the children to have their voices heard and their claims raised in juvenile court.” Kenny A., 218 F.R.D. at 287. 45 There is no statute or regulation that authorizes the Family Court to hear class actions. “The Family Court lacks general equitable powers and cannot take action unless specific jurisdictional authority to act can be found in the Family Court Act. . . . [T]he Family Court, as a court of statutory origin, has no more powers than those expressly conferred upon it by the Legislature.” Waldeck v. Piner, 488 A.2d 1218, 1220 (R.I. 1985) (citing Britt v. Britt, 383 A.2d 592, 594 (R.I. 1978)). The only Rhode Island statute that authorizes state court class actions is Rule 23 of the Superior Court Rules of Civil Procedure, which expressly grants only the Superior Court jurisdiction to hear class actions. See R.I. Super. Ct. R. Civ. P. 23; DeCesare v. Lincoln Benefit Life Co., 852 A.2d 474, 486 (R.I. 2004).
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Neither federal nor state law requires that Plaintiff Children bring their federal claims in numerous duplicative individual Family Court hearings, instead of bringing a single class action lawsuit in federal court. See, e.g., Wexler v. Lepore, 385 F.3d 1336, 1340 (11th Cir. 2004) (rejecting Younger abstention and noting that “we have found no binding precedent requiring federal plaintiffs to raise federal claims in pending state court proceedings where they are also plaintiffs”); but see Carson P., 240 F.R.D. at 531. In fact, the Child Advocate, who is charged by statute with protecting and vindicating the rights of children in Rhode Island state custody and “[t]ak[ing] all possible action” to secure the rights of those children, R.I. Gen. Laws § 42-73-7, recognized that it would be both inefficient and ineffectual to raise these claims in myriad Family Court proceedings, and instead elected to bring the instant lawsuit in federal court. (See Alston Decl., Ex. 1 at ¶¶ 5–6.)46
Even if piecemeal litigation was initiated asserting federal constitutional, statutory and common law claims on behalf of 3,000 individual children in their 3,000 individual judicial reviews, those 3,000 individual claims could in no way provide the overarching systemic relief within DCYF requested in this case, which is directed at reforming numerous significant functions of the Rhode Island child welfare system. For example, in an individual Plaintiff Child’s case, the Family Court could not order relief against the child welfare agency that would:
46 Her charge to “[t]ake all possible action including . . . formal legal action,” R.I. Gen. Laws § 42-73-7(6), in no way requires the Child Advocate to vindicate Plaintiff Children’s rights first or solely in the context of individual Family Court proceedings, as suggested by Defendants. (See Defs. Mem. at 51-52, 73.)
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• Require actions to lower caseworkers’ caseloads; • Require actions to lower the rate by which Plaintiff Children are abused and
neglected while in DCYF custody; • Provide additional placement resources so as to decrease the rate at which
Plaintiff Children are institutionalized; • Require actions to increase the number of adoptions for Plaintiff Children whose
parents’ rights have been terminated; • Create a professional, mandatory training program for caseworkers; • Create a professional, mandatory training program for foster parents; • Require actions to implement an effective recruiting strategy for caseworkers; • Assure a quality assurance system; • Increase the quantity of medical, dental and mental health services available to
abused and neglected children in DCYF’s custody; • Develop a new array of foster home placements for children; or • Provide the accountability and management practices necessary to ensure that
state policies and practices are followed. With thousands of children in DCYF custody due to abuse and neglect, even in the unlikely event that the Family Court would order some type of corrective individualized relief in each and every putative class member’s case, such relief would not be directed at remedying the systemic ills this case is meant to address,47 and, in fact, would run the risk of creating conflicting directives from various judges within the Family Court system. As one court has observed when considering similar claims:
47 It is of no moment that the Family Court can consider constitutional questions in individual cases (see Defs.’ Mem. at 66–67), because the Family Court cannot order this relief on a class-wide or even a system-wide basis. Moreover, other cases cited by Defendants are inapposite because they challenge enforcement proceedings, such as the termination of parental rights or custody determinations, which are not at issue in the instant lawsuit.
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Even in individual cases, the juvenile court cannot order DFCS [Georgia’s analogue to DCYF] to provide a particular placement for a child, develop new placements, or enter orders regarding staff training, caseloads, the creation of new resources or other issues affecting what happens to children who come before it. Kenny A., 218 F.R.D. at 287. Unlike the Rhode Island Family Court, however, this District Court can direct DCYF to make those systemic changes that are so crucial to avoiding harm to Plaintiff Children while they are in the state’s custody. In sum, in order to abstain pursuant to Younger, the Court would have to find that this is the type of proceeding to which Younger applies and, further, that all three prongs of the Middlesex test are met. None of those conditions is met here. Instead, Plaintiff Children’s claims in this lawsuit are “the exact sort of disputes over citizens’ rights with which the federal courts were created to deal.” Brian A., 149 F. Supp. 2d at 957 (citation omitted). As the First Circuit has affirmed, the Supreme Court “has never ‘remotely suggest[ed]’ that every pending state proceeding between a state and a private plaintiff justifies abstention if that private plaintiff then sues the state in federal court.” Río Grande, 397 F.3d at 70 (quoting Moore v. Sims, 442 U.S. 415, 423 n.8 (1979)). In order to have their day in court, Plaintiff Children should be permitted to maintain their federal constitutional, statutory and common law claims in federal court, where they rightly belong.
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IV. THERE IS NO BASIS TO ABSTAIN UNDER ROOKER-FELDMAN Defendants’ mistaken assertion that the Rooker-Feldman abstention doctrine
negates this Court’s subject matter jurisdiction over Plaintiff Children’s federal claims (Defs.’ Mem. at 74-82) is directly contradicted by the Supreme Court’s decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005). See also D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). In Exxon Mobil, the Court made clear that the Rooker-Feldman doctrine applies only to the very limited circumstance in which the losing party to a state court action requests that a federal court review and reject that state court judgment. 544 U.S. at 284. The RookerFeldman doctrine has no application to this federal suit, which is brought by Plaintiff Children who have never before been a party—let alone a losing party—to an action in Family Court or any other related state court proceeding.48 Plaintiff Children seek to vindicate constitutional and federal statutory rights that have not before been litigated, and the relief they seek would in no way reverse or call into doubt any previous state court judgments.
The Supreme Court’s decision in Exxon Mobil made clear that the RookerFeldman doctrine occupies very “narrow ground” and can be evoked only where a party has “called upon the District Court to overturn an injurious state-court judgment.” 544 U.S. at 284, 291-92. Admonishing the lower courts for “constru[ing] [the RookerFeldman doctrine] to extend far beyond the contours of the Rooker and Feldman cases,”
48 In fact, Plaintiff Children are the subjects of, but not parties to, their state Family Court custodial proceedings. See R.I. Gen. Laws § 40-11-14 (providing for the appointment of a representative for “[a]ny child who is alleged to be abused or neglected as a subject of a petition filed in family court”) (emphasis added).
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the unanimous Court reasserted the doctrine’s limited reach: “The Rooker-Feldman doctrine . . . is confined to . . . cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 283-84 (emphasis added); see also Lance v. Dennis, 546 U.S. 459, 466 (2006) (reiterating that Rooker-Feldman applies only in “‘limited circumstances,’” where “a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court”)(quoting Exxon Mobil, 544 U.S. at 291).
Defendants’ claim that the First Circuit has taken an “expansive view” of the Rooker-Feldman doctrine (Defs.’ Mot. at 79) is wrong because it is based on a body of law that predates Exxon Mobil. Their position is in fact entirely at odds with subsequent First Circuit decisions that have paid close heed to the admonishment in Exxon Mobil that the doctrine is of only very limited applicability. See, e.g., Federación de Maestros de P. R. v. Junta de Relaciones del Trabajo de P. R., 410 F.3d 17, 19-24 (1st Cir. 2005) (stating that Exxon Mobil “substantially altered our understanding of the Rooker-Feldman doctrine” and specifically limits it to cases where procedural posture is as in Rooker and Feldman themselves); Adames v. Fagundo, 198 F. App’x 20, 22 (1st Cir. 2006), cert. denied, 127 S. Ct. 1335 (Feb. 20, 2007).
The First Circuit has also found it error to dismiss a Section 1983 action pursuant to Rooker-Feldman when there was no direct federal court challenge by a party in a previous state court lawsuit to a specific injurious state court determination, despite a claim below that the Rooker-Feldman doctrine applied simply because a federal court decision could “effectively defeat or negate a state judgment to which the federal
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claimant was a party.” Diva’s Inc. v. City of Bangor, 411 F.3d 30, 42-43 (1st Cir. 2005).49
Defendants cannot identify any current federal, constitutional, or statutory claims
that have been previously brought by Plaintiff Children and adjudicated in state judicial
proceedings, because there are none. Nor can Defendants identify a single Family Court
order that would be effectively reversed by the prospective injunctive relief that Plaintiff
Children request, because there is none. Finally, as Plaintiff Children do not seek to
overturn the Family Court orders cited by Defendants, but are asking this Court to review
executive branch Defendants’ actions, the Rooker-Feldman doctrine does not apply. See
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002) (“The
[Rooker-Feldman] doctrine has no application to judicial review of executive action.”).
As Defendants acknowledge, even Carson P. v. Heineman, 240 F.R.D. 456 (D.
Neb. 2007), upon which Defendants rely heavily to support the rest of their motion, held that Rooker-Feldman did not apply to this kind of case. 240 F.R.D. at 522-2350 (noting
49 Circuit courts across the country have joined the First Circuit in rejecting efforts to apply the Rooker-Feldman doctrine wherever a federal ruling might “effectively” invalidate a prior state court ruling. See, e.g., Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 86 (2d Cir. 2005) (Rooker-Feldman “does not deprive a district court of subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court”); Mosby v. Ligon, 418 F.3d 927, 932 (8th Cir. 2005) (“[T]he Rooker-Feldman doctrine does not bar the district court from exercising jurisdiction over general challenges to the constitutionality of a State’s disciplinary rules and processes.”); Davani v. Va. Dep’t of Transp., 434 F.3d 712, 716-17 (4th Cir. 2006) (employee’s civil rights claims against employer not barred by Rooker-Feldman, since claims did not challenge the underlying state court decision, even though favorable ruling could undermine the prior state court ruling that termination was not retaliatory or based on impermissible reason); Gilbert v. Ferry, 413 F.3d 578, 579 (6th Cir. 2005) (vacating district court dismissal of civil rights suit on RookerFeldman grounds in light of Exxon Mobil). 50 The Carson P. Nebraska district court decision is mistakenly cited by Defendants as a Tenth Circuit case. (Defs.’ Mem. at 79.)
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that plaintiffs’ requested injunction against the state child welfare agency did not seek reversal of previous juvenile court rulings). There is therefore no basis to apply the Rooker-Feldman doctrine to this case. V. THE RIGHTS ASSERTED IN PLAINTIFF CHILDREN’S FOURTH
CAUSE OF ACTION ARE PRIVATELY ENFORCEABLE Plaintiff Children allege in their Fourth Cause of Action that Defendants have engaged in a policy, pattern, practice, or custom of depriving Plaintiff Children of rights conferred on them by the Adoption Assistance and Child Welfare Act of 1980, as amended, 42 U.S.C. §§ 621 et seq., 670 et seq. (collectively, AACWA51), and the regulations thereunder, 45 C.F.R. §§ 1355–57.52 Defendants’ challenge to Plaintiff Children’s enforcement of their unambiguously conferred rights under AACWA ignores that the Social Security Act, which encompasses AACWA,53 has a “legacy of private enforcement.” Lynch v. Dukakis, 719 F.2d 504, 512 (1st Cir. 1983) (finding AACWA case plan and review provisions privately enforceable). Numerous federal court decisions, including by the Court of Appeals for the First Circuit, have found that the
51 For purposes of convenience, the statutory provisions on which Plaintiff Children rely in their Fourth Cause of Action are collectively referred to herein as AACWA, though some of these provisions were enacted separately from the original Adoption Assistance and Child Welfare Act of 1980 and some courts have used other abbreviations for these same provisions, including “AAA,” “AACA,” and “CWA.” 52 In their Motion to Dismiss, Defendants “move to dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).” (Defs.’ Mot. to Dismiss at 1.) They do not, however, move to dismiss any of the individual causes of action within the Complaint under Rule 12(b)(6), and only brief arguments in support of dismissing Plaintiff Children’s Fourth Cause of Action under Rule 12(b)(6) in their Memorandum of Law. (See Defs.’ Mem. at 89–106.) 53 Defendants’ assertion that “AACWA falls within the provisions of the federal Medicaid Act” (Defs.’ Mem. at 89) is factually incorrect.
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provisions on which Plaintiff Children rely confer rights on abused and neglected children in state custody and that these rights are privately enforceable through 42 U.S.C. § 1983.54
Instead of challenging AACWA’s private enforceability under the operative legal standard in the First Circuit, as set out in Río Grande Community Health Center, Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005), Defendants have simply copied and pasted extended passages from Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007), and, to a lesser degree, 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), and have strung them together with their own conclusory statements that the AACWA provisions at issue do not fully satisfy a legal test that the First Circuit has moved away from.55 Not only are those two decisions from other jurisdictions not binding, but their analysis and conclusions are sharply at odds with the legion of contrary federal decisions, including by the Court of Appeals for the First Circuit.
54 See, e.g., L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988); Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983); Clark K. v. Guinn, No. 2:06-CV-1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May 14, 2007); Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003); Jeanine B. v. McCallum, No. 93-C-0547, 2001 WL 748062 (E.D. Wis. June 19, 2001); Brian A. v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000); Occean v. Kearney, 123 F. Supp. 2d 618 (S.D. Fla. 2000); Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996), aff’d, 126 F.3d 372 (2d Cir. 1997); Norman v. McDonald, 930 F. Supp. 1219 (N.D. Ill. 1996); Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995); LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991), aff’d sub nom. LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993); Norman v. Johnson, 739 F. Supp. 1182 (N.D. Ill. 1990); B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989); Del A. v. Edwards, No. 86-0801, 1988 WL 19284 (E.D. La. Mar. 2, 1988), aff’d, 855 F.2d 1148 (5th Cir. 1988). 55 The test laid out in Blessing v. Freestone, 520 U.S. 329 (1997), is discussed below at 51.
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A. Congress Has Clearly Signaled That It Intended “State Plan” Provisions of the Social Security Act to be Privately Enforceable
In Suter v. Artist M., 503 U.S. 347 (1992), the Supreme Court held that 42 U.S.C.
§ 671(a)(15), a single provision of AACWA which provides that “reasonable efforts shall
be made to preserve and reunify families,” and which is not at issue in this case, did not create a private right of action because it was too vague.56 503 U.S. at 363. The Suter
Court also suggested in dicta that AACWA as a whole was privately unenforceable
because the statute’s requirement that States prepare and file a “plan” obviated any
entitlement to rights secured under those plans. See 503 U.S. at 358–63. Concerned that
“Suter v. Artist M. affects . . . the enforceability of the Adoption Assistance and Child
Welfare Act” and that it “could result in the elimination of the ability of beneficiaries of
the State plan titles of the Social Security Act, primarily children and families, to sue to
enforce the Act’s requirements,” H.R. Rep. No. 102-631, at 365 (1992) (emphasis added),
Congress unequivocally responded by enacting the “Suter fix,” an amendment to the
Social Security Act that disclaimed any intent to foreclose private rights of action under
56 In a footnote in Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004), this Court considered in passing the implications of Suter for the validity of a consent decree in an action brought by the Child Advocate of Rhode Island on behalf of children in Rhode Island’s foster care custody. 296 F. Supp. 2d at 185 n.4. The Fourth Cause of Action in the underlying complaint in that case had raised claims under 42 U.S.C. § 671(a)(15), the specific provision that the Suter Court held did not give rise to a private right of action, as well as § 627, which Congress repealed in 1994. Complaint at 11, Office of the Child Advocate v. Collins, No. CA86-0723-P (D.R.I. Nov. 25, 1986.) The Sixth Cause of Action had only raised claims under §§ 627 and 671(a)(16). Id. This Court concluded that when it entered the consent decree in 2001, “it lacked subject matter jurisdiction with regard to Counts 4 and 6 of the Complaint because the Supreme Court had held that 42 U.S.C. § 671(a)(15) does not give rise to a private right of action under § 1983.” 296 F. Supp. 2d at 185 n.4 (citing Suter, 503 U.S. at 363). This Court concluded, however, that it nevertheless had subject matter jurisdiction under § 1983 when it entered the consent decree because of the viable underlying constitutional claims in the case. Id.
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AACWA and the other “State plan” titles of the Social Security Act, see 42 U.S.C.
§§ 1320a-2, 1320a-10.57 Congress left intact Suter’s narrow holding that § 671(a)(15)
itself was not privately enforceable. 42 U.S.C. §§ 1320a-2, 1320a-10. 58
The legislative history of the “Suter fix” makes clear that Congress intended the
provisions of AACWA (other than § 671(a)(15)) and other “State plan” programs to be
privately enforceable, and that the purpose of the “Suter fix” was to confirm that intent:
[The “Suter fix”] amends . . . the Social Security Act to provide that each individual shall have the right not to be denied any service or benefit under this Act as a result of the failure of any State to which Federal funds are paid under a title of this Act that includes plan requirements to . . . administer such a plan in accordance with such requirements.
This provision confirms the more than two decades of Federal jurisprudence which has recognized that, in establishing “State plan” programs under the Social Security Act, Congress meant to . . . permit those injured by State officials’ failure to . . . [administer those programs in accordance with federal statutory standards] (including any failure . . . to comply with any provisions of, or any provision required to be included in, such a plan) to challenge, through appropriate judicial actions, that failure.
H.R. Rep. No. 102-631, at 366 (emphasis added).
57 The text of the amendment reads:
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in prior Supreme Court decisions respecting such enforceability: Provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
42 U.S.C. §§ 1320a-2, 1320a-10.
58 Congress acknowledged that § 671(a)(15) was “too vague to be enforceable” in a private action. H.R. Rep. No. 102-631, at 366.
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Congress’s expressed intent “to restore to an aggrieved party the right to enforce, as it existed prior to . . . Suter . . . the Federal mandates of the State plan titles of the Social Security Act in the Federal courts,” id. at 365 (emphasis added), was a ratification of the federal courts’ pre-Suter decisions, including those of numerous federal courts that had found that AACWA conferred privately enforceable rights on children in foster care. See, e.g., L.J. v. Massinga, 838 F.2d 118, 123 (4th Cir. 1988) (finding rights to case plan, case review and licensing standards)59; Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir. 1983) (case plan and case review system); LaShawn A. v. Dixon, 762 F. Supp. 959, 96263, 988-89 (D.D.C. 1991) (case plan, health and education records and licensing standards), aff’d sub nom. LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993); B.H. v. Johnson, 715 F. Supp. 1387, 1402 (N.D. Ill. 1989) (case plan and case review system); R.C. v. Hornsby, No. 88-D-1170-N, slip op. at 13-20 (M.D. Ala. Apr. 19, 1989) (AACWA) (attached as Exhibit 8); Del A. v. Edwards, No. 86-0801, 1988 WL 19284, *2 (E.D. La. Mar. 2, 1988) (case plan and case review system), aff’d, 855 F.2d 1148 (5th Cir. 1988); Joseph A. v. New Mexico Dep’t of Human Servs., 575 F. Supp. 346, 353 (D.N.M. 1983) (same).
59 Later, the Fourth Circuit reversed its position on whether a private right of action exists with respect to § 671(a)(10), the provision that requires standards for foster placements that reasonably accord with recommended standards of national organizations, which is analyzed below. See White v. Chambliss, 112 F.3d 731, 739 (4th Cir. 1997). That decision, however, rests on a misreading of § 671(a)(10) as imposing a “requirement that a state’s plan be ‘reasonably in accord with recommended standards of national organizations,’” a requirement that is nowhere found in the text of § 671(a)(10). White, 112 F.3d at 739 (emphasis added).
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B. The Legal Standard for Determining the Existence of Individual Statutory Rights
The Supreme Court set the operative standard for determining whether a statute creates rights that can be enforced through § 1983 in Gonzaga University v. Doe, 536 U.S. 273 (2002), and Blessing v. Freestone, 520 U.S. 329 (1997). “The ultimate question, in respect to whether private individuals may bring a lawsuit to enforce a federal statute, through 42 U.S.C. § 1983 . . . is a question of congressional intent.” Gonzaga, 536 U.S. at 291 (Breyer, J., joined by Souter, J., concurring in judgment); accord Río Grande, 397 F.3d at 73 (“the ultimate inquiry is one of congressional intent”).
In Blessing, the Supreme Court applied a three-part analysis to determine whether Congress intended a particular statutory provision to create an individual right:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. 520 U.S. at 340–41 (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 510–11 (1990); Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 430–32 (1987)). Five years later, in Gonzaga, the Court again addressed the private enforceability of a federal statute under § 1983 and the determination of whether, in enacting a particular statute, “Congress intended to create a federal right.” Gonzaga, 536 U.S. at 283. As the First Circuit has explained, Gonzaga . . . did not precisely follow the Blessing test but rather relied on several somewhat different factors in determining whether a right existed: whether the provision contains “rights-creating language,” whether the provision ha[s] an aggregate as opposed to an individualized focus, and the other sorts of enforcement provisions that Congress has provided for.
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Río Grande, 397 F.3d at 73 (citing Gonzaga, 536 U.S. at 287–90). Defendants’ statement that the Gonzaga Court “applied the Blessing test” (Defs.’ Mem. at 90) is inconsistent with the First Circuit’s explicit interpretation articulated in Río Grande.
Defendants conspicuously ignore not only Río Grande, the leading case in the First Circuit, but all of the relevant First Circuit jurisprudence regarding private rights of action. The First Circuit has concluded that Gonzaga now provides the primary frame of analysis but that Blessing remains relevant. See, e.g., Río Grande, 397 F.3d at 73 n.10 (“We apply the more recent analysis used in Gonzaga rather than the Blessing test. But it is evident from our analysis that the three factors in the Blessing test are all met . . . .”); Long Term Care Pharm. Alliance v. Ferguson, 362 F.3d 50, 57–59 (1st Cir. 2004) (applying Gonzaga analysis). The Gonzaga Court indicated that a statute contains “rights-creating language” when it is “‘phrased in terms of the persons benefited,’ . . . ‘with an unmistakable focus on the benefited class.’” Gonzaga, 536 U.S. at 284 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 691, 692 n.13 (1979)). Rights-creating language requires “individually focused terminology.” Gonzaga, 536 U.S. at 287. “Rightscreating language has also been found in provisions that identify ‘the class for whose especial benefit the statute was enacted.’” Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003) (quoting Cannon, 441 U.S. at 688 n.9). In Río Grande, the First Circuit concluded that the language in a particular section of the Medicaid Act “is rights-creating language because it is mandatory and has a clear focus on the benefitted [sic] . . . [class] rather than the regulated states.” 397 F.3d at 74 (citing Gonzaga, 536 U.S. at 279, 287).
Gonzaga distinguished between statutes that have an individualized focus and those that have an “aggregate focus,” stating that the latter “speak only in terms of
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institutional policy and practice” and “are not concerned with ‘whether the needs of any particular person have been satisfied.’” Gonzaga, 536 U.S. at 288 (quoting Blessing, 520 U.S. at 343). The First Circuit in Río Grande found evidence of an individual rather than aggregate focus in a Medicaid provision’s use of “highly specific terms” that are “extremely clear and narrow” and that tell the State exactly what to do. 397 F.3d at 75. Such language is both indicative of an individualized rather than aggregate focus and it puts to rest concerns “of a right being too vague to easily enforce,” one of the factors in Blessing. Id. The First Circuit also stated: “The mere fact that all the Medicaid laws are embedded within the requirements for a state plan does not, by itself, make all of the Medicaid provisions into ones stating a mere institutional policy or practice rather than creating an individual right.” Id. at 74.
Finally, with regard to statutory enforcement mechanisms, the Gonzaga Court drew a sharp distinction between an administrative enforcement scheme under which “an aggrieved individual lack[s] any federal review mechanism” — as was the case with the statutes examined in Wilder, 496 U.S. at 522-23, and Wright, 479 U.S. at 426, where private rights of action were found — and one that provides individuals with some means, other than private actions, for having their grievances heard and redressed. Gonzaga, 536 U.S. at 280-81, 289-90 (emphasis added). The statute examined in Gonzaga provided an administrative avenue for individuals to have their grievances addressed, which the Court viewed as evidence that Congress did not intend to create individually enforceable private rights. Id. at 289-90. In contrast to the statute in Gonzaga, AACWA provides no mechanism for individual children in foster care to raise their grievances, placing it squarely in the same category as the statutes examined in
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Wilder and Wright.60 See Kenny A. v. Perdue, 218 F.R.D. 277, 303 (N.D. Ga. 2003) (“There is no mechanism for foster children to seek redress for violations of their rights under the statute [AACWA].”)
When Congress “confers an individual right, the right is presumptively enforceable by § 1983.” Gonzaga, 536 U.S. at 284; accord Blessing, 520 U.S. at 341. Defendants have failed to rebut this presumption, either by showing that Congress expressly foreclosed § 1983 actions under AACWA, which it did not, or by showing that Congress did so implicitly by creating a comprehensive enforcement scheme that is incompatible with private enforcement via § 1983, an argument that has already been rejected by the First Circuit in Lynch as well as by other federal courts. See Lynch, 719 F.2d at 510-12 (concluding that private enforcement of AACWA through § 1983 action is entirely compatible with statute’s provision empowering Secretary of Health and Human Services to withhold funds from States that fail to meet their obligations under AACWA).61
60 This final step in the Gonzaga analysis is identical for all provisions of AACWA on which Plaintiff Children rely. Therefore, to avoid needless redundancy, this portion of the Gonzaga analysis is not repeated in the discussion below of each individual right. 61 See also Kenny A., 218 F.R.D. at 303 (“the remedies available under the Adoption Act do not preclude a private enforcement action under 42 U.S.C. § 1983”); Mo. Child Care Ass’n v. Martin, 241 F. Supp. 2d 1032, 1042 (W.D. Mo. 2003) (“there is not a process under the [AA]CWA where an aggrieved individual has access to any federal review mechanism”); Norman, 739 F. Supp. at 1209 (“the AA[CW]A’s lack of a comprehensive remedial scheme supports the inference that Congress intended these provisions of the AA[CW]A to be privately enforced”); B.H., 715 F. Supp. at 1402-4 (holding that AACWA’s enforcement provisions do not foreclose private enforcement via § 1983); cf. LaShawn A., 762 F. Supp. at 989 (“It would strain logic to hold that plaintiffs, as the intended beneficiaries of the Adoption Assistance Act, nevertheless are precluded from enforcing their rights under the Act.”).
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Despite the First Circuit’s embrace of Gonzaga, Defendants’ argument for dismissal of Plaintiff Children’s statutory claims relies almost entirely on the erroneous interpretation and application of Blessing in Carson P., a single decision from a foreign jurisdiction. All of the provisions of AACWA on which Plaintiff Children rely, however, meet Gonzaga’s standards for private enforceability, as demonstrated below: They contain rights-creating language; they have an individualized focus; they are highly specific; and they are directly concerned with whether the needs of individual children in foster care are met, not merely statements of institutional policy or practice.
C. The Specific AACWA Provisions on Which Plaintiff Children Rely All Create Enforceable Rights 1. Plaintiff Children Have an Enforceable Right to Timely Written Case Plans Containing Mandated Elements, and to a Case Review System to Ensure the Implementation of Those Plans, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1) and 675(5)(A)
Congress clearly intended to confer upon children in foster care a right to timely written case plans that contain specific mandated elements and to a case review system to ensure the implementation of those plans. AACWA’s case-plan and case-review provisions are replete with the required rights-creating language, couched in “individually focused terminology,” Gonzaga, 536 U.S. at 287, that clearly “identify ‘the class for whose especial benefit the statute was enacted,’” i.e., children in foster care, Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003) (quoting Cannon, 441 U.S. at 688 n.9).
Section 671(a)(16) requires the State to develop a case plan “for each child receiving foster care maintenance payments” and to have a case review system “with
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respect to each such child.” Id. (emphasis added).62 Section 675(1) defines with
precision what each child’s case plan must include.63 A case plan must contain, among
62 42 U.S.C. § 671(a)(16) provides, in relevant part (emphasis added):
(a) In order for a State to be eligible for payments under this part, it shall have a plan . . . which . . . (16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system . . . with respect to each such child; . . . 63 42 U.S.C. § 675(1) provides, in relevant part (emphasis added):
(1) The term “case plan” means a written document which includes at least the following:
(A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement and how the agency which is responsible for the child plans to carry out the . . . judicial determination made with respect to the child in accordance with section 672(a)(1) of this title.
(B) A plan for assuring that the child receives safe and proper care and that services are provided to the . . . child . . . in order to . . . facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.
(C) The health and education records of the child, including the most recent information available regarding—
(i) the names and addresses of the child’s health and educational providers;
(ii) the child’s grade level performance;
(iii) the child’s school record;
(iv) assurances that the child’s placement in foster care takes into account proximity to the school in which the child is enrolled at the time of placement;
(v) a record of the child’s immunizations;
(vi) the child’s known medical problems;
cont.
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other things, a “plan for assuring that the child receives safe and proper care,” as well as services that “address the needs of the child.” § 675(1)(B) (emphasis added). Section 622(b)(8)(A)(ii) requires a case review system “for each child receiving foster care under the supervision of the State.” Id. (emphasis added).64 Section 675(5)(A) requires a case review system “for assuring that . . . each child has a case plan designed to achieve placement in a safe setting that is . . . consistent with the best interest and special needs of the child.” Id. (emphasis added).65

cont. (vii) the child’s medications; and

(viii) any other relevant health and education information concerning the child determined to be appropriate by the State agency.

(D) Where appropriate, for a child age 16 or over, a written description of the programs and services which will help such child prepare for the transition from foster care to independent living.

(E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems . . . .
64 42 U.S.C. § 622(b)(8)(A)(ii) provides, in relevant part:

(b) Each plan for child welfare services under this subpart shall . . . (8) provide assurances that the State . . . (A) is operating . . . (ii) a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State; . . .

65 42 U.S.C. § 675(5)(A) provides, in relevant part (emphasis added):

(5) The term “case review system” means a procedure for assuring that — (A) each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting

cont.

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It is thus clear that children in foster care are the intended beneficiaries of
AACWA’s case-plan and case-review provisions. Moreover, far from being vague or
amorphous, as Defendants argue, the requirements of the provisions at issue here are
highly specific, as further demonstrated by the definitional sections, 675(1) (“case plan”)
and 675(5) (“case review system”), as well as the implementing regulations at 45 C.F.R.
§ 1356.21(g),66 making their enforcement well within judicial competence.
cont. available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child, which—
(i) if the child has been placed in a foster family home or child-care institution a substantial distance from the home of the parents of the child, or in a State different from the State in which such home is located, sets forth the reasons why such placement is in the best interests of the child, and
(ii) if the child has been placed in foster care outside the State in which the home of the parents of the child is located, requires that, periodically, but not less frequently than every 6 months, a caseworker on the staff of the State agency of the State in which the home of the parents of the child is located, of the State in which the child has been placed, or of a private agency under contract with either such State, visit such child in such home or institution and submit a report on such visit to the State agency of the State in which the home of the parents of the child is located, . . .
66 “[R]egulations, if valid and reasonable, authoritatively construe the statute itself.” Alexander v. Sandoval, 532 U.S. 275, 284 (2001). Regulations “may provide evidence of what private rights Congress intended to create.” Rolland, 318 F.3d at 52 (internal quotation omitted). 45 C.F.R. § 1356.21(g) provides, in relevant part (emphasis added):
(g) . . . The case plan for each child must:
(1) Be a written document, which is a discrete part of the case record, in a format determined by the State, which is developed jointly with the parent(s) or guardian of the child in foster care; and
(2) Be developed within a reasonable period, to be established by the State, but in no event later than 60 days from the child’s removal from the home . . . ;
(3) Include a discussion of how the case plan is designed to achieve a safe placement for the child in the least restrictive (most family-like) setting
cont.
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Although the Eleventh Circuit found in 31 Foster Children, that two subdivisions of section 675(5) do not confer enforceable rights, two dispositive factors in the Eleventh Circuit’s opinion squarely distinguish it from this case. First, the court stated that, “[b]ecause §§ 675(5)(D) and (E) are definitional in nature, they alone cannot and do not supply a basis for conferring rights enforceable under § 1983.” 31 Foster Children, 329 F.3d at 1271 (emphasis added). Second, the court noted that the plaintiffs there had failed to sue under § 622(b)(10)(B)(ii), a rights-creating section of AACWA that incorporates § 675(5) by reference and explicitly makes the definitional language therein binding. 31 Foster Children, 329 F.3d at 1272 n.8. Here, in contrast, Plaintiff Children rely on definitional provisions within AACWA only in conjunction with other provisions that are privately enforceable on their own, including § 622(b)(8)(A)(ii) (as § 622(b)(10)(B)(ii) was redesignated in 2006). These same two distinctions were present in Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003), a case from within the Eleventh Circuit where 31 Foster Children is binding authority. On the basis of these two factors, the federal court there distinguished 31 Foster Children and went on to find that AACWA’s case-plan
cont. available and in close proximity to the home of the parent(s) when the case plan goal is reunification and a discussion of how the placement is consistent with the best interests and special needs of the child . . . ; (4) Include a description of the services offered and provided to prevent removal of the child from the home and to reunify the family; and (5) Document the steps to finalize a placement when the case plan goal is or becomes adoption or placement in another permanent home in accordance with sections 475(1)(E) and (5)(E) of the Act [42 U.S.C. §§ 675(1)(E) & 675(5)(E)]. When the case plan goal is adoption, at a minimum, such documentation shall include child-specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems.
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and case-review provisions — among others — confer enforceable individual rights on children in foster care. See Kenny A., 218 F.R.D. at 290-93, 303.
Defendants quote Carson P. for the proposition that “§§ 671(a)(16) and 622 fail the first prong of the Blessing test,” (Defs.’ Mem. at 101 (quoting Carson P., 240 F.R.D. at 542-44), notwithstanding the plain language in both provisions that makes clear that they were intended to benefit “each child receiving foster care,” §§ 622(b)(8)(A)(ii), 671(a)(16) (emphasis added). Carson P.’s analysis of these provisions, quoted at great length by Defendants, relies on a misreading and misapplication of Blessing.
The Carson P. court took from Blessing the rule that “Federal statutes requiring operation of a program in ‘substantial compliance’ with federal law are not intended to benefit individuals and cannot create federal rights.” Carson P., 240 F.R.D. at 544. The Carson P. court then applied this principle to 42 U.S.C. § 1320a-2a, which provides a “substantial conformity” standard for reviews, by the Secretary of Health and Human Services (HHS), of the States’ administration of their child welfare programs. Carson P., 240 F.R.D. at 543–44; see also § 1320a-2a.67 This was clear error, because the plaintiffs in Carson P., like Plaintiff Children here, had neither sued under § 1320a-2a nor asserted a blanket right to have the State substantially conform to provisions that specify the required contents of a State plan. The Carson P. court’s misapplication of the rule it derived from Blessing indicates that the Carson P. court misread Blessing as saying that if a “substantial compliance” standard or its equivalent applies to federal review of a State’s performance under a State plan, then statutory provisions that specify the required
67 Incorrectly referred to as § 1320a-2 in Carson P. and, therefore, in Defendant’s brief. Ironically, § 1320a-2 is, in fact, the “Suter fix.”
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contents of a State plan do not give rise to individual rights. That is both a serious misreading of Blessing and the precise opposite of the explicit language of the “Suter fix.”68
The plaintiffs in Blessing asserted “individual rights to all mandated services delivered in substantial compliance” with the child-support enforcement provisions of Title IV-D of the Social Security Act, and sought an injunction requiring “substantial compliance” in all areas of a Title IV-D State plan. Blessing, 520 U.S. at 341. They did not assert any specific rights under any of the individual provisions of Title IV-D. Id. at 341-46. While the Court found that “the requirement that a State operate its child support program in ‘substantial compliance’ with Title IV-D was not intended to benefit individual children . . . and therefore it does not constitute a federal right,” the Court explicitly “d[id] not foreclose the possibility that some provisions of Title IV-D give rise to individual rights” and remanded the case to the district court “to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting.” Id. at 343, 345-46.
Because Plaintiff Children do not assert any rights under § 1320a-2a and do not assert a blanket right to the administration of any programs in “substantial conformity” with any statutory provisions, regulations, or State plan requirements, the “substantial conformity” standard specified in § 1320a-2a is irrelevant to the issues before this Court.
Not only is the Carson P. opinion based on a misreading and misapplication of Blessing, its conclusion regarding private enforcement of AACWA’s case-plan and casereview provisions is contrary to those of the many other federal courts, including the 68 See supra note 57.
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Court of Appeals for the First Circuit, that have adjudicated the issue and concluded that AACWA confers upon children in foster care privately enforceable rights to individual case plans and a case review system. See Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir. 1983) (case plan and case review system); L.J., 838 F.2d at 123 (same); Clark K. v. Guinn, No. 2:06-CV-1068-RCJ-RJJ, 2007 WL 1435428, *10 (D. Nev. May 14, 2007) (same); Kenny A., 218 F.R.D. at 291-92 (same); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 945-49 (M.D. Tenn. 2000) (same); Occean v. Kearney, 123 F. Supp. 2d 618, 625 (S.D. Fla. 2000) (case review system); Norman v. McDonald, 930 F. Supp. 1219, 1227 (N.D. Ill. 1996) (case plan and care review system); Jeanine B. v. Thompson, 877 F. Supp. 1268, 1284 (E.D. Wis. 1995) (case review system); LaShawn A., 762 F. Supp. at 962-63, 989 (case plan); B.H., 715 F. Supp. at 1402 (case plan and case review system); Norman v. Johnson, 739 F. Supp. 1182, 1204-9 (N.D. Ill. 1990) (case plan); Del A., 1988 WL 19284, at *2 (case plan and case review system). This court should follow the persuasive authority of the many other federal courts in holding that the case-plan and case-review-system provisions of AACWA create privately enforceable rights for children in foster care.
2. Plaintiff Children Have an Enforceable Right to Have a Timely Petition to Terminate Parental Rights Filed, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(ii) and 675(5)(E)
Section 622(b)(8)(A)(ii) requires “a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State.” Id. (emphasis added).69 Section 675(5)(E) further requires that such a “case review system” assure that “in the case of a child who has been in foster care under the 69 See supra note 64.
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responsibility of the State for 15 of the most recent 22 months . . . the State shall file a
petition to terminate the parental rights of the child’s parents . . . and, concurrently, to
identify, recruit, process, and approve a qualified family for an adoption,” unless one of three specific exceptions applies. Id. (emphasis added).70 The right created by these
provisions is commonly known as the “15/22” right.
These provisions focus on the required steps the State must take to free for
adoption individual children who have been in state custody for 15 out of 22 consecutive
months. The statutory exceptions also all relate to the status of “the child” and required
70 42 U.S.C. § 675(5)(E) provides, in relevant part (emphasis added): (5) The term “case review system” means a procedure for assuring that . . . (E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant . . . or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child’s parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless— (i) at the option of the State, the child is being cared for by a relative; (ii) a State agency has documented in the case plan . . . a compelling reason for determining that filing such a petition would not be in the best interests of the child; or (iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child’s home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child; . . .
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State actions “with respect to the child.” § 675(5)(E) (emphasis added).71 Clearly, this
“is rights-creating language because it is mandatory and has a clear focus on the
benefitted [sic] [children].” Río Grande, 397 F.3d at 74 (citing Gonzaga, 536 U.S. at
279, 287). The provisions also have a clearly individualized focus.
Additional evidence that Congress intended to provide for private enforcement of
the 15/22 right lies in the “Transition Rules” contained in the Adoption and Safe Families
Act of 1997, the legislation that created the 15/22 right. See Adoption and Safe Families
Act of 1997, Pub. L. No. 105-89, § 103(c), 111 Stat. 2115, 2119 (1997) (codified at 42
U.S.C. § 675 note). The Transition Rules reiterate that the States have an affirmative
duty to implement the 15/22 provisions because they explicitly vest the 15/22 right in all
children in foster care. They provide a timetable for implementing the 15/22 mandate with respect to all children in foster care, be they “new foster children”72 or “current
71 Like the plaintiffs in Jeanine B. v. McCallum, No. 93-C-0547, 2001 WL 748062 (E.D. Wis. June 19, 2001), Plaintiff Children here do not ask this Court to “go behind” State Defendants’ determinations in any individual child’s case that one of the exceptions defined in §§ 675(5)(E)(i)–(iii) applies in that case. See Jeanine B., 2001 WL 748062 at *4. Plaintiff Children only seek to enforce their right to have a petition to terminate parental rights timely filed or to have one of the available statutory exceptions documented. 72 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, § 103(c)(1), 111 Stat. 2115, 2119 (1997) (codified at 42 U.S.C. § 675 note), provides, in relevant part (emphasis added):
(1) New foster children.—In the case of a child who enters foster care . . . under the responsibility of a State after the date of the enactment of this Act [Nov. 19, 1997]—
(A) if the State comes into compliance with the amendments made by subsection (a) of this section [amending § 675(5)(C)–(E)] before the child has been in such foster care for 15 of the most recent 22 months, the State shall comply with . . . [§ 675(5)(E)] with respect to the child when the child has been in such foster care for 15 of the most recent 22 months; and
(B) if the State comes into such compliance after the child has been in such foster care for 15 of the most recent 22 months, the State shall comply with
cont.
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foster children.”73 They also explicitly provide that, although the 15/22 right was added to a definitional section of AACWA, § 675(5), it was meant to be enforceable as a State plan requirement under § 671(a).74
Because the Transition Rules require 100-percent compliance, they are distinct from the statute that the Supreme Court held did not give rise to private rights in Blessing because it required only “substantial compliance,” defined as 75-percent compliance. See Blessing, 520 U.S. at 343-44. That statute did not give rise to private rights because, even when a State achieves substantial compliance, “any individual plaintiff might still be among the . . . 25 percent of persons whose needs ultimately go unmet.” Id. at 344. Here, in contrast, Congress made clear that it intended no children to have their “needs ultimately go unmet,” giving each child a personal stake in State compliance with the 15/22 provisions and giving rise to a private right for each child to hold the State to the requirements that Congress imposed.
cont. . . . [§ 675(5)(E)] with respect to the child not later than 3 months after the end of the first regular session of the State legislature that begins after such date of enactment.
73 § 103(c)(2)(C), 111 Stat. at 2119, provides, in relevant part (emphasis added): (2) Current foster children.—In the case of children in foster care under the responsibility of the State on the date of the enactment of this Act [Nov. 19, 1997], the State shall . . . (C) not later than 18 months after the end of . . . [the] first regular session [of the State legislature that begins after the date of enactment], comply with . . . [§ 675(5)(E)] with respect to all of such children.
74 § 103(c)(4), 111 Stat. at 2119, provides, in relevant part (emphasis added): (4) Requirements treated as state plan requirements.—. . . [T]he requirements of this subsection shall be treated as State plan requirements imposed by section 471(a) [42 U.S.C. § 671(a)] . . . .
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Defendants do not contest that the terms of these provisions unambiguously
impose a binding obligation on the State. See, e.g., § 675(5)(E) (“the State shall file a
petition” (emphasis added)). Furthermore, the degree of detail and precision in the
statute, as well as in the corresponding federal regulations, puts to rest Defendants’
concern about vagueness or ambiguity. Section 675(5)(E) and the regulations at 45 C.F.R. § 1356.21(i)75 specify exactly how to determine when a petition to terminate
75 45 C.F.R. § 1356.21(i) provides, in relevant part (emphasis added):
Application of the requirements for filing a petition to terminate parental rights at section 475(5)(E) of the Social Security Act [42 U.S.C. § 675(5)(E)].
(1) Subject to the exceptions in paragraph (i)(2) of this section, the State must file a petition (or, if such a petition has been filed by another party, seek to be joined as a party to the petition) to terminate the parental rights of a parent(s):
(i) Whose child has been in foster care under the responsibility of the State for 15 of the most recent 22 months. The petition must be filed by the end of the child’s fifteenth month in foster care. . . .
(ii) Whose child has been determined by a court of competent jurisdiction to be an abandoned infant . . . . The petition to terminate parental rights must be filed within 60 days of the judicial determination that the child is an abandoned infant; or,
(iii) Who has been convicted of one of the felonies listed at paragraph (b)(3)(ii) of this section. Under such circumstances, the petition to terminate parental rights must be filed within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required.
(2) The State may elect not to file or join a petition to terminate the parental rights of a parent per paragraph (i)(1) of this section if:
(i) At the option of the State, the child is being cared for by a relative;
(ii) The State agency has documented in the case plan . . . a compelling reason for determining that filing such a petition would not be in the best interests of the individual child. Compelling reasons for not filing a petition to terminate parental rights include, but are not limited to:
(A) Adoption is not the appropriate permanency goal for the child; or,
cont.
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parental rights must be filed on behalf of a child, making judicial enforcement not only possible but straightforward. Other federal courts have held that the right to have a petition to terminate parental rights filed or to have an available statutory exception documented within the statutorily-defined time frames is privately enforceable by children in foster care. See, e.g., Kenny A., 218 F.R.D. at 292; Jeanine B. v. McCallum, No. 93-C-0547, 2001 WL 748062, *3-5 (E.D. Wis. June 19, 2001).
3. Plaintiff Children Have an Enforceable Right to Have Their Health and Educational Records Reviewed, Updated and Supplied to the Foster Care Providers with Whom They Are Placed at the Time of Placement, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1)(C) and 675(5)(D)
The record-keeping requirements of §§ 675(1)(C) and 675(5)(D) are suffused with “individually focused terminology” and have “‘an unmistakable focus on the benefited class’” of children in foster care. Gonzaga, 536 U.S. at 287 (quoting Cannon, 441 U.S. at 691). Section 675(1)(C) provides that each child’s case plan must include numerous specific records, each defined by reference to the individual child: “the names
cont. (B) No grounds to file a petition to terminate parental rights exist; or, (C) The child is an unaccompanied refugee minor . . . ; or (D) There are international legal obligations or compelling foreign policy reasons that would preclude terminating parental rights; or (iii) The State agency has not provided to the family, consistent with the time period in the case plan, services that the State deems necessary for the safe return of the child to the home, when reasonable efforts to reunify the family are required. (3) When the State files or joins a petition to terminate parental rights in accordance with paragraph (i)(1) of this section, it must concurrently begin to identify, recruit, process, and approve a qualified adoptive family for the child.
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and addresses of the child’s health and educational providers; . . . the child’s grade level performance; . . . the child’s known medical problems; . . . [and] any other relevant health and educational information concerning the child.” § 675(1)(C)(i), (ii), (vi), (viii) (emphasis added).76 Section 675(5)(D) likewise requires that each child have a case review system that assures that “a child’s health and education record . . . is reviewed and updated,” and that a copy be provided to the child’s foster care provider “at the time of each placement of the child in foster care” and “to the child” if the child is still in foster care when he or she reaches adulthood. Id. (emphasis added).77
These record-keeping provisions, like the case-plan and case-review provisions of which they are a part, are devoid of any vagueness or ambiguity, specifying precisely which records must be included in each child’s case plan and when they must be provided to the child’s foster caregiver. In conjunction with the rights-creating, mandatory language of §§ 622(b)(8)(A)(ii) and 671(a)(16),78 these provisions are privately enforceable under Gonzaga. See, e.g., Clark K., 2007 WL 1435428, at *12 (case plans and case review system, including health and education records); Kenny A., 218 F.R.D. at 292 (same); Brian A., 149 F. Supp. 2d at 945–49 (case plans and case review system);
76 See supra note 63. 77 42 U.S.C. § 675(5)(D) provides, in relevant part (emphasis added):
(5) The term “case review system” means a procedure for assuring that . . . (D) a child’s health and education record (as described in . . . [§ 675](1)(A)) is reviewed and updated, and a copy of the record is supplied to the foster parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care, and is supplied to the child at no cost at the time the child leaves foster care if the child is leaving foster care by reason of having attained the age of majority under State law; . . . 78 See supra notes 64 & 62.
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Occean, 123 F. Supp. 2d at 625 (same); Norman, 930 F. Supp. at 1227 (same); Jeanine B., 877 F. Supp. at 1284 (same); LaShawn A., 762 F. Supp. at 962–63, 989 (health and educational records in case plan).
4. Plaintiff Children Have an Enforceable Right to Services to Protect Their Safety and Health, Pursuant to 42 U.S.C. §§ 622(b)(15), 671(a)(22) and 675(1)(B)
Section 622(b)(15) requires States to “actively consult[] with and involve[] physicians or other appropriate medical professionals in . . . assessing the health and well-being of children in foster care . . . and . . . [in] determining appropriate medical treatment for the children.” Id. (emphasis added).79 Section 671(a)(22) mandates that “the State shall develop and implement standards to ensure that children in foster care placements . . . are provided quality services that protect the safety and health of the children.” Id. (emphasis added).80 Likewise, the State is required to develop, for each child in foster care, a case plan “for assuring that the child receives safe and proper care and that services are provided to the . . . child . . . in order to . . . address the needs of the
79 42 U.S.C. §§ 622(b)(15) provides, in relevant part (emphasis added): (b) . . . Each plan for child welfare services under this subpart shall . . . (15) describe how the State actively consults with and involves physicians or other appropriate medical professionals in . . . (A) assessing the health and wellbeing of children in foster care under the responsibility of the State; and (B) determining appropriate medical treatment for the children; . . .
80 42 U.S.C. § 671(a)(22) provides, in relevant part (emphasis added): (a) . . . In order for a State to be eligible for payments under this part, it shall have a plan . . . which . . . (22) provides that . . . the State shall develop and implement standards to ensure that children in foster care placements in public or private agencies are provided quality services that protect the safety and health of the children; . . .
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child while in foster care.” § 675(1)(B) (emphasis added).81 Like the case-plan
provisions of which they are a part, these statutory sections leave no doubt as to “‘the
class for whose especial benefit the statute was enacted,’” Rolland v. Romney, 318 F.3d
42, 52 (1st Cir. 2003) (quoting Cannon, 441 U.S. at 688 n.9), and have an individualized focus.82 They require individualized care and services to “address the needs of the child
while in foster care.” § 675(1)(B) (emphasis added). The related regulations also make
clear the mandatory focus on the proper care of children in foster care. See 45 C.F.R. § 1357.10(c)(5).83
Because these health and safety provisions contain rights-creating language and
do not “speak only in terms of institutional policy and practice,” they create individual
rights for children in foster care and are enforceable. Gonzaga, 536 U.S. at 288.
Defendants do not dispute that these provisions impose binding obligations. Contrary to
81 42 U.S.C. § 675(1)(B) provides, in relevant part (emphasis added): (1) The term “case plan” means a written document which includes at least . . . (B) A plan for assuring that the child receives safe and proper care and that services are provided to the . . . child . . . in order to . . . facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.
82 Without specifically addressing services to protect children’s safety and health, a subset of the case-plan requirements, other courts have held that the case-plan provisions of AACWA as a whole are privately enforceable. See Lynch v. Dukakis, 719 F.2d 504, 507, 509–12 (1st Cir. 1983) (§ 675(1)); Clark K., 2007 WL 1435428, at *10 (§ 675(1)); LaShawn A., 762 F. Supp. at 962–63, 988–89 (§ 675(1)). 83 45 C.F.R. § 1357.10(c)(5) provides, in relevant part (emphasis added):
(c) . . . Child welfare services means public social services directed to accomplish . . . (5) Assuring adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption; . . .
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Defendants’ assertion (see Defs. Mem. at 100, 104–5), however, these provisions are not
too vague and amorphous to be enforced. See Kenny A., 218 F.R.D. at 291-92
(concluding that Congress intended to confer on children in foster care right to quality
foster care services that protect their health and safety and finding that this right is
privately enforceable).
5. Plaintiff Children Have an Enforceable Right to Planning and Services to Facilitate Their Safe Return Home or Permanent Placement, Pursuant to 42 U.S.C. §§ 622(b)(8)(A)(iii), 629a(a)(1)(A), 629a(a)(7), 629a(a)(8), 675(1)(B) and 675(1)(E)
Section 622(b)(8)(A)(iii) requires the State to operate:
a service program designed to help children . . . where safe and appropriate, return to families from which they have been removed; or . . . be placed for adoption, with a legal guardian, or, if adoption or legal guardianship is determined not to be appropriate for a child, in some other planned, permanent living arrangement. Id. (emphasis added); see also § 629a(a)(1)(A) (“services for children . . . designed to
help children . . . where safe and appropriate, return to families from which they have
been removed; or . . . be placed for adoption, with a legal guardian, or, if adoption or
legal guardianship is determined not to be safe and appropriate for a child, in some other
planned, permanent living arrangement”) (emphasis added). Thus, in “individually
focused terminology,” Gonzaga, 536 U.S. at 287, the statute clearly identifies “children”
who “have been removed” from their families as the intended beneficiaries of mandatory
reunification and permanency services. § 622(b)(8)(A)(iii); see also § 629a(a)(7)(A)
(“services . . . are provided to a child that [sic] is removed from the child’s home”) (emphasis added);84 § 629a(a)(8) (“services . . . [to facilitate adoption] when adoptions

84 42 U.S.C. § 629a(a)(7)(A) provides, in relevant part (emphasis added): 72

cont.

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promote the best interests of children”) (emphasis added);85 45 C.F.R. § 1357.10(c)(4) (“Child welfare services means public social services directed to accomplish . . . [r]estoring to their families children who have been removed and may be safely returned, by the provision of services to the child and the family”).
The AACWA case plan provisions likewise require “that services are provided to the . . . child . . . in order to . . . facilitate return of the child to his own safe home or the permanent placement of the child.” § 675(1)(B) (emphasis added);86 see also § 675(1)(E) (“[case plan for] a child with respect to whom the permanency plan is adoption or placement in another permanent home” must include documentation of “child specific recruitment efforts” to facilitate placement) (emphasis added).87 These provisions confer “individual entitlement[s].” Gonzaga, 536 U.S. at 287.

cont. (7)(A) . . . The term “time-limited family reunification services” means the services and activities . . . that are provided to a child that is removed from the child’s home and placed in a foster family home or a child care institution . . . in order to facilitate the reunification of the child safely and appropriately within a timely fashion, but only during the 15-month period that begins on the date that the child . . . is considered to have entered foster care.
85 42 U.S.C. § 629a(a)(8) provides, in relevant part (emphasis added):

The term ‘adoption promotion and support services’ means services and activities designed to encourage more adoptions out of the foster care system, when adoptions promote the best interests of children, including such activities as pre- and post-adoptive services and activities designed to expedite the adoption process and support adoptive families.
86 See supra note 63.
87 42 U.S.C. § 675(1)(E) provides, in relevant part (emphasis added):

(1) The term “case plan” means a written document which includes . . . (E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for

cont.

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Defendants argue that there is no private right of action under §§ 629a(a)(7) or 629a(a)(8) because these sections “are definitional provisions and, as such, ‘alone cannot and do not supply a basis for conferring rights enforceable under § 1983.’” (Defs.’ Mem. at 106 (quoting 31 Foster Children, 329 F.3d at 1271) (emphasis added).) To the contrary, however, such definitional sections in AACWA work together with sections like 622(b)(8)(A)(iii) to provide the requisite specificity to the conferred rights that allows for judicial enforcement. Thus, for example, far from being vague and amorphous, § 629a(a)(7) enumerates precisely which “services and activities . . . are [to be] provided to a child . . . in order to facilitate the reunification of the child safely and appropriately within a timely fashion.” (emphasis added). Similarly, § 675(1)(E) spells out exactly what child-specific documentation must be included in the case plan of a child whose permanency goal is other than reunification. These provisions grant children in foster care enforceable federal rights to services in order to facilitate their return to their family homes, their placement for adoption, or their placement in some other planned, permanent living arrangement. See Kenny A., 218 F.R.D. at 291–92.
cont. the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems to facilitate orderly and timely in-State and interstate placements.
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6. Plaintiff Children Have an Enforceable Right to Foster Care Maintenance Payments Made on Their Behalf That Cover the Cost of Food, Clothing, Shelter, Daily Supervision, School Supplies, Reasonable Travel to Family Visitation and Other Expenses, Pursuant to 42 U.S.C. §§ 671(a)(1), 671(a)(11), 672 and 675(4)(A)
Section 672(a)(1) provides that “[e]ach State . . . shall make foster care
maintenance payments on behalf of each child who has been removed from the home of a
relative . . . into foster care.” Id. (emphasis added);88 see also § 671(a)(1) (requiring State
plan to provide for foster care maintenance payments);89 § 671(a)(11) (requiring State
plan to provide for periodic review of foster care maintenance payment amounts);90 45
88 42 U.S.C. § 672 provides, in relevant part (emphasis added):
(a) . . . (1) . . . Each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative . . . into foster care . . .
(b) . . . Foster care maintenance payments may be made under this part only on behalf of a child described in subsection (a) of this section who is . . . in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or private child-placement or child-care agency, or . . . in a child-care institution, whether the payments therefor are made to such institution or to a public or private child-placement or child-care agency, which payments shall be limited so as to include in such payments only those items which are included in the term “foster care maintenance payments” (as defined in section 675(4) of this title). . . . 89 42 U.S.C. § 671(a)(1) provides, in relevant part (emphasis added):
(a) . . . In order for a State to be eligible for payments under this part, it shall have a plan . . . which— (1) provides for foster care maintenance payments in accordance with section 672 . . . . 90 42 U.S.C. § 671(a)(11) provides, in relevant part (emphasis added):
(a) . . . In order for a State to be eligible for payments under this part, it shall have a plan . . . which . . . (11) provides for periodic review of the . . . amounts paid as foster care maintenance payments . . . to assure their continuing appropriateness; . . .
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C.F.R. § 1356.21(m)(1) (same).91 AACWA and its implementing regulations also specify
exactly what the foster care maintenance payments on behalf of each child must cover:
“the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school
supplies, a child’s personal incidentals, liability insurance with respect to a child, and
reasonable travel to the child’s home for visitation.” § 675(4)(A);92 see also 45 C.F.R.
§ 1355.20(a).93 This language is rights-creating, as it has an “unmistakable focus” on the
91 45 C.F.R. § 1356.21(m)(1) provides, in relevant part (emphasis added):
(m) . . . In meeting the requirements of section 471(a)(11) of the Act [42 U.S.C. § 671(a)(11)], the State must review at reasonable, specific, timelimited periods to be established by the State: (1) The amount of the payments made for foster care maintenance and adoption assistance to assure their continued appropriateness; . . .
92 42 U.S.C. § 675(4)(A) provides, in relevant part (emphasis added):
(4)(A) The term “foster care maintenance payments” means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence.
93 45 C.F.R. § 1355.20(a) provides, in relevant part (emphasis added):
(a) . . . Foster care maintenance payments are payments made on behalf of a child eligible for title IV-E foster care to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel for a child’s visitation with family, or other caretakers. Local travel associated with providing the items listed above is also an allowable expense. In the case of child care institutions, such term must include the reasonable costs of administration and operation of such institutions as are necessarily required to provide the items described in the preceding sentences. “Daily supervision” for which foster care maintenance payments may be made includes:
(1) Foster family care—licensed child care, when work responsibilities preclude foster parents from being at home when the child for whom they
cont.
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child as an individual whose care has an ascertainable economic cost, and it confers an “individual entitlement” to financial support to cover those costs on behalf of each child. Gonzaga, 536 U.S. at 284 (quoting Cannon, 441 U.S. at 691); Gonzaga, 536 U.S. at 287 (quoting Blessing, 520 U.S. at 343).
The fact that these maintenance payments “on behalf of each child” are to be made to the child’s caregiver in no way detracts from the child’s status as the beneficiary. AACWA clearly specifies that the payments are to be spent on the child’s food, clothing, shelter and other essentials. The payments are made “on behalf of each child” because the subject children lack the legal capacity to receive the payments themselves. The only purpose of AACWA’s maintenance-payment provisions is to provide for and benefit children in foster care.
Nor are AACWA’s maintenance-payment provisions too vague or amorphous to be enforced by a federal judge, as argued by Defendants. In Wilder, the Supreme Court rejected that argument regarding a similar provision of the Medicaid Act that required States to adopt reasonable and adequate reimbursement rates for health care providers. See 496 U.S. at 519–20. Like the AACWA provision in question here, the Medicaid Act
cont. have care and responsibility in foster care is not in school, licensed child care when the foster parent is required to participate, without the child, in activities associated with parenting a child in foster care that are beyond the scope of ordinary parental duties, such as attendance at administrative or judicial reviews, case conferences, or foster parent training. Payments to cover these costs may be: included in the basic foster care maintenance payment; a separate payment to the foster parent, or a separate payment to the child care provider; and (2) Child care institutions—routine day-to-day direction and arrangements to ensure the well-being and safety of the child.
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provision identified factors that the States must consider in setting its reimbursement rates. Id. at 519. The Supreme Court’s reasoning in Wilder is directly applicable here:
While there may be a range of reasonable rates, there certainly are some rates outside that range that no State could ever find to be reasonable and adequate under the Act. Although some knowledge of the hospital industry might be required to evaluate a State’s findings with respect to the reasonableness of its rates, such an inquiry is well within the competence of the Judiciary. Id. at 519–20 (footnote omitted). Moreover, the maintenance-payment provisions of AACWA provide considerably more guidance than the Medicaid Act provision at issue in Wilder. They are thus “defined with sufficient particularity to enable a court to assess the sufficiency of the rates paid by the state.” Kenny A., 218 F.R.D. at 303 (finding that children in foster care have privately enforceable federal right under AACWA to maintenance payments made on their behalf); cf. ASW v. Oregon, 424 F.3d 970, 978 (9th Cir. 2005) (concluding that AACWA’s provisions requiring adoption assistance payments create federal rights enforceable through § 1983); Cal. Alliance of Child & Family Servs. v. Allenby, 459 F. Supp. 2d 919, 925 (N.D. Cal. 2006) (concluding that AACWA’s maintenance payment provisions confer enforceable individual right on foster-care providers); Mo. Child Care Ass’n v. Martin, 241 F. Supp. 2d 1032, 1040–42 (W.D. Mo. 2003) (concluding that AACWA’s maintenance payment provisions are privately enforceable by institutional foster-care providers, though “the ultimate beneficiaries of the [AA]CWA are the foster children”).
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7. Plaintiff Children Have an Enforceable Right to Placements That Conform to Reasonable Professional Standards, Pursuant to 42 U.S.C. §§ 671(a)(10) and 671(a)(11)
Defendants do not contest that the AACWA provisions requiring the application
of reasonable professional licensing standards to family foster homes and institutions are
intended to benefit children like Plaintiff Children and are mandatory. Section 671(a)(10)
requires that “any foster family home or child care institution receiving funds” under
AACWA for the care of children in foster care be subject to State licensing standards
“which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes.”94 Those licensing standards
must be subject to “periodic review . . . to assure their continuing appropriateness.” § 671(a)(11);95 see also 45 C.F.R. § 1356.21(m)(2).96
94 42 U.S.C. § 671(a)(10) provides, in relevant part (emphasis added):
(a) . . . In order for a State to be eligible for payments under this part, it shall have a plan . . . which . . . (10) provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part [§§ 670 et seq.] or part B [§§ 621 et seq.] . . . ; 95 42 U.S.C. § 671(a) provides, in relevant part (emphasis added):
(a) . . . In order for a State to be eligible for payments under this part, it shall have a plan . . . which . . . (11) provides for periodic review of the standards referred to in the preceding paragraph and amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness; . . . 96 45 C.F.R. § 1356.21(m)(2) provides, in relevant part (emphasis added):
cont.
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Contrary to Defendants’ argument, the rights conferred by §§ 671(a)(10) and 671(a)(11) are neither vague nor amorphous and their enforcement is comfortably within this Court’s competence, as numerous federal courts have concluded. See, e.g., Kenny A., 218 F.R.D. at 290–92 (§ 671(a)(10)); Brian A., 149 F. Supp. 2d at 945–49 (same); Marisol A. v. Giuliani, 929 F. Supp. 662, 683 (S.D.N.Y. 1996) (same), aff’d, 126 F.3d 372 (2d Cir. 1997); Jeanine B., 877 F. Supp. at 1284 (§§ 671(a)(10)–(11)); LaShawn A., 762 F. Supp. at 962, 988–89 (§ 671(a)(10)). The “recommended standards of national organizations concerned with standards for such institutions or homes” to which these provisions refer are readily ascertainable objective standards that are routinely promulgated by national organizations such as the Child Welfare League of America. Plaintiff Children will present expert testimony that the “national standards” referred to in the statute have a well-recognized meaning and that the standards set or applied by Defendants are not “reasonably in accord” with those national standards. Nor does the requirement of a judicial inquiry into reasonableness present an obstacle to judicial enforcement. See, e.g., Wilder, 496 U.S. at 519–20 (“Although some knowledge of the hospital industry might be required to evaluate a State’s findings with respect to the reasonableness of its rates, such an inquiry is well within the competence of the Judiciary.”); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (“A statute is not impermissibly vague simply because it requires judicial inquiry into ‘reasonableness.’ . . .
cont. (m) . . . In meeting the requirements of section 471(a)(11) of the Act [42 U.S.C. § 671(a)(11)], the State must review at reasonable, specific, timelimited periods to be established by the State: . . . (2) The licensing or approval standards for child care institutions and foster family homes.
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Common law courts have reviewed actions for reasonableness since time immemorial.”) (internal quotation omitted).
D. Plaintiff Children’s Federal Statutory Claims Should Not Be Dismissed
Defendants’ arguments for dismissing Plaintiff Children’s federal statutory claims are based on a uniform misreading of AACWA through the narrow and distorting lens of a single district court opinion from a foreign jurisdiction. It ignores the jurisprudence of the First Circuit and is consistent only in its lack of persuasiveness. Because, as demonstrated above, all of the provisions of AACWA on which Plaintiff Children rely are privately enforceable, this Court should deny Defendants’ motion to dismiss Plaintiff Children’s statutory claims in its entirety.
CONCLUSION Defendants do not dispute that Rhode Island’s child welfare system, which they are responsible for administering, harms the abused and neglected children it is mandated to protect. Instead, Defendants claim that they are legally unaccountable to Plaintiff Children who suffer as a direct result of Defendants’ actions and inactions. Defendants’ attempt to avoid responsibility for failing to meet their legal obligations to Plaintiff Children and Defendants’ request that this Court decline to exercise its jurisdiction to hear Plaintiff Children’s claims are based upon misstatements of the proper legal standards and ignore relevant Supreme Court, First Circuit and other federal district court authority. Plaintiff Children are properly before this Court to vindicate their wellestablished federal statutory, common law and constitutional rights. For all of the foregoing reasons, Plaintiff Children respectfully request that this Court deny Defendants’ Motion to Dismiss in its entirety.
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Dated: November 2, 2007
Respectfully submitted,
/s/ Susan Lambiase MARCIA ROBINSON LOWRY (Bar No. 1187053 (N.Y.); admitted pro hac vice) SUSAN LAMBIASE (Bar No. 2099489 (N.Y.); admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org
/s/ Jametta O. Alston JAMETTA O. ALSTON (Bar No. 3909) CHILD ADVOCATE OF THE STATE OF RHODE ISLAND John O. Pastore Center 57 Howard Avenue, Fourth Floor Cranston, RI 02920 Phone: (401) 222-1690 Facsimile: (401) 222-6652 Email: jalston@doa.state.ri.us
JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
VERNON M. WINTERS (Bar No. 130128 (Cal.); admitted pro hac vice) WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vernon.winters@weil.com
Plaintiffs request oral argument in the amount of 20 minutes
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Case 1:07-cv-00241-ML -LDA Document 37 Filed 11/02/07 Page 97 of 97 PageID #: 809

CERTIFICATION
I hereby certify that on November 2, 2007, I electronically mailed the foregoing document to the attorneys of record listed below:

Brenda D. Baum, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov
Kevin Aucoin, Esq. Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903-3716 Tel: (401) 528-3579 Fax: (401) 525-3566 kevin.aucoin@dcyf.ri.gov

James R. Lee, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2314 Fax: (401) 222-2995 jlee@riag.ri.gov
Jane Morgan, Esq. Assistant Director of Legal Services R.I. Department of Elderly Affairs Benjamin Rush Building 35 Howard Avenue Cranston, RI 02920 Tel: (401) 462-0524 Fax: (401 462-0503 jmorgan@dea.state.ri.us

/s/ Susan Lambiase SUSAN LAMBIASE (Bar No. 2099489 (NY); admitted pro hac vice) 330 7th Avenue, 4th Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: slambiase@childrensrights.org

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 Case 1:07-cv-00241-ML -LDA Document 57 Filed 02/29/08 Page 1 of 58 PageID #: 1212

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

SAM and TONY M., et al.,
Plaintiffs,
v.
DONALD L. CARCIERI, in his official capacity as Governor of the State of Rhode Island, et al.,
Defendants.

)

)

)

)

)

)

Class Action

) Civil Action No. 1:07-cv-00241-L-LDA

)

)

)

)

)

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW IN FURTHER OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION PURSUANT TO FED. R. CIV. 12(b)(1)

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... iv I. INTRODUCTION ................................................................................................................1 II. PROCEDURAL HISTORY..................................................................................................3 III. THE NAMED PLAINTIFF CHILDREN ARE REPRESENTED BY
FULLY QUALIFIED NEXT FRIENDS ..............................................................................4 A. The Named Plaintiff Children Cannot Vindicate Their Rights
Without the Assistance of Next Friends ...................................................................5 B. The Named Plaintiff Children Are Represented by Proper Next
Friends.......................................................................................................................6 1. Mary Melvin Is a Qualified and Appropriate Next Friend
for David T....................................................................................................7 2. Kathleen Collins Is a Qualified and Appropriate Next
Friend for Caesar S. .....................................................................................10 3. Gregory Elliott Is a Qualified and Appropriate Next Friend
for Sam and Tony M., Deanna H., and Danny and Michael B. ..................................................................................................................13 4. Defendants’ Arguments for Disqualifying Mary Melvin, Kathleen Collins and Gregory Elliott as Next Friends Are Baseless and Should Be Rejected ................................................................17 C. Inadequacy of Next Friends Would Not Justify Dismissal......................................22 IV. ABSTENTION UNDER YOUNGER V. HARRIS WOULD BE IMPROPER..........................................................................................................................23 A. This Case Meets None of the Threshold Issues That Implicate Younger Abstention .................................................................................................24 1. This Lawsuit Does Not Undermine Comity ................................................25 2. The Family Court Proceedings Are Not Enforcement Proceedings ..................................................................................................25 3. This Lawsuit Will Not Interfere with Any Family Court Proceeding....................................................................................................27
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a. The Family Court’s Decisions Are Not at Issue in This Lawsuit.....................................................................................27
b. The Defendant Executive Actors Are Responsible for Plaintiff Children........................................................................29
c. The Family Court Merely Performs a Narrow, Proscribed Oversight Role ...............................................................30
d. Plaintiff Children Seek Relief That Will Operate Solely Against the Executive Defendants and Not Against the Family Court.................................................................32
B. Applying the Middlesex Test Requires the Court to Decline Younger Abstention .................................................................................................35 1. There Are No Ongoing Proceedings............................................................35 2. There Is No Extremely Important State Interest at Stake ............................35 3. The Family Court Proceedings Do Not Afford Plaintiff Children an Adequate Forum to Litigate Their Claims ...............................36
V. THE ROOKER-FELDMAN DOCTRINE DOES NOT APPLY..........................................39 VI. PLAINTIFF CHILDREN ARE PROPERLY REPRESENTED BY THE
CHILD ADVOCATE AND FOUR OTHER COUNSEL OF RECORD IN THIS FEDERAL SUIT........................................................................................................40 A. Plaintiff Children Are Represented by a Team of Attorneys and
May Proceed with Their Federal Claims Before This Court Regardless of the Child Advocate’s Statutory Mandate ..........................................41 B. Rhode Island State Statutes Cannot Defeat This Federal Court’s Subject Matter Jurisdiction Over Plaintiff Children’s Federal Claims ......................................................................................................................42 C. There is No State Statutory Requirement That the Child Advocate Pursue Plaintiffs’ Claims Only in Family Court......................................................45 VII. CONCLUSION....................................................................................................................47
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TABLE OF AUTHORITIES Supreme Court Cases
Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) .................................................................................................................................24
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) .................................................................................................................................29
Estelle v. Gamble, 429 U.S. 97 (1976) ..........................................................................................29 Exxon-Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005)...................................24 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ..............................................................................24 Marshall v. Marshall, 547 U.S. 293 (2006).............................................................................43, 48 Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S.
423 (1982)..........................................................................................................................35 Moore v. Sims, 442 U.S. 415 (1979)........................................................................................26, 36 New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350 (1989)....................25 Whitmore v. Arkansas, 495 U.S. 149 (1990) .......................................................................9, 13, 16 Youngberg v. Romeo, 457 U.S. 307 (1982) ...................................................................................29
First Circuit Cases Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000) ................................................................................39 Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281 (1st
Cir. 1982) .........................................................................................................................5, 6 Durrett v. Housing Authority of Providence, 896 F.2d 600 (1st Cir. 1990) ..................................44 Federación de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de
Puerto Rico, 410 F.3d 17 (1st Cir. 2005)...........................................................................40 Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998)............................................................................16 Germany v. Vance, 868 F.2d 9 (1st Cir. 1989) ..............................................................................29 Kercado-Meléndez v. Aponte-Roque, 829 F.2d 255 (1st Cir. 1987)..................................33, 34, 36 Malachowski v. City of Keene, 787 F.2d 704 (1st Cir. 1986) ........................................................26
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Río Grande Community Health Center, Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) ..25, 26, 27, 34 Rivera-Puig v. García-Rosario, 983 F.2d 311 (1st Cir. 1992) ......................................................36 Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71 (1st Cir. 2005)..............................................................29
Other Federal Cases 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) ........................................................33 Ad Hoc Committee of Concerned Teachers v. Greenburgh #11 Union Free School
Dist., 873 F.2d 25 (2d Cir. 1989)...................................................................................7, 10 Adelman v. Graves, 747 F.2d 986 (5th Cir. 1984).........................................................................23 Bowen v. Rubin, 213 F. Supp. 2d 220 (E.D.N.Y. 2001) ................................................................16 Brian A. v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000)....................................................39 Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184
(E.D.N.Y. 1999).................................................................................................................39 Child v. Beame, 412 F. Supp. 593 (S.D.N.Y. 1976) ......................................................................15 Clark K. v. Guinn, No. 2:06-CV-1068-RCJ-RJJ, 2007 WL 1435428 (D. Nev. May
14, 2007) ......................................................................................................................10, 22 Corporación Insular de Seguros v. García, 680 F. Supp. 476 (D.P.R. 1988)...............................24 Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980).......................................................................16 Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920 (E.D. Mich. Apr. 17,
2007) ......................................................................................................................10, 21, 22 Essex Chemical Corp. v. Hartford Accident & Indemnity Co., 993 F. Supp. 241
(D.N.J. 1998)......................................................................................................................42 First National City Bank v. Gonzalez & Co. Sucr. Corp., 308 F. Supp. 596
(D.P.R. 1970) .....................................................................................................................43 Gardner v. Parson, 874 F.2d 131 (3d Cir. 1989) ..........................................................................23 G.L. v. Strangler, 873 F. Supp. 252 (W.D. Mo. 1994) ..................................................................33 González v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000) ..............................................................16 Gough v. Perkowski, 694 F.2d 1140 (9th Cir. 1982) .....................................................................42
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Grand Bahama Petroleum Co., Ltd. v. Asiatic Petroleum Corp., 550 F.2d 1320 (2d Cir. 1977).....................................................................................................................43
Gross v. Weingarten, 217 F.3d 208 (4th Cir. 2000) ......................................................................44 Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir.
1992) ..................................................................................................................................27 In re Zawisza, 73 B.R. 929 (Bankr. E.D. Pa. 1987).......................................................4, 18, 21, 24 Inmates of Boys’ Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972)............................33 Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995) ...............................................15, 22 John G. v. L’Heureux, No. 81-0035 (D.R.I. 1981) ..................................................................33, 48 Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002) ...................................................................33 Joseph A. v. New Mexico Department of Human Services, No. 80-623 JC/DJS,
slip op. (D.N.M. Jan. 16, 2003) .........................................................................................33 Kenny A. v. Barnes, No. 1:02-cv-1686-MHS (N.D. Ga. Oct. 18, 2002) .......................................15 Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003).............................................................34, 39 Kenny A. v. Perdue, No. 1:02-cv-1686-MHS (N.D. Ga. Aug. 10, 2004) ......................................15 Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 265123 (S.D.N.Y.
May 22, 1998)....................................................................................................7, 13, 15, 22 McLeod v. Me. Department of Human Services, No. 99-233-P-H, 1999 WL
33117123 (D. Me. 1999)........................................................................................26, 27, 36 Norfleet v. Ark. Department of Human Services, 989 F.2d 289 (8th Cir. 1993) ...........................29 Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004)...................... passim Office of the Child Advocate v. Pontarelli, No. 82-0091 P (D.R.I. 1982) ...............................33, 48 Olivia Y. v. Barbour, 351 F. Supp. 2d 543 (S.D. Miss. 2004) .......................................................34 Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. (S.D. Miss. Mar. 11, 2005) ............7, 10, 13, 22 Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974) .........................................................................43 Sánchez-Velasco v. Security of Department of Corrections, 287 F.3d 1015 (11th
Cir. 2002) ...........................................................................................................................16
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State Cases Cardinale v. Cardinale, 889 A.2d 210 (R.I. 2006)........................................................................38 Catalina Inc. v. P. Zwetchkenbaum & Sons, Inc., 267 A.2d 702 (R.I. 1970)................................45 In re Doe, 390 A.2d 390 (R.I. 1978)..............................................................................................30 In re R.J.P., 445 A.2d 286 (R.I. 1982)...........................................................................................47 Mottola v. Cirello, 789 A.2d 421 (R.I. 2002) ................................................................................45 Providence & Worcester R.R. Co. v. Pine, 729 A.2d 202 (R.I. 1999)...........................................45 Rison v. Air Filter System, Inc., 707 A.2d 675 (R.I. 1998)............................................................45 Waldeck v. Piner, 488 A.2d 1218 (R.I. 1985)................................................................................30
Federal Statutes, Regulations, Rules Federal Rules of Civil Procedure 17(c) (2007)..............................................................................23
State Statutes, Regulations, Rules 03 007 Code R.I. R. 0025 (2005)...................................................................................................29 03 007 Code R.I. R. 0030 (2006)...................................................................................................28 R.I. Gen. Laws § 11-9-5.1 (2007)..................................................................................................30 R.I. Gen. Laws §§ 12-25-1 et seq. (2007)......................................................................................46 R.I. Gen. Laws §§ 12-25-16 et seq. (2007)....................................................................................46 R.I. Gen. Laws § 14-1-32 (2007)...................................................................................................31 R.I. Gen. Laws § 14-1-30 (2007)...................................................................................................18 R.I. Gen. Laws § 15-7-7 (2007)...............................................................................................18, 26 R.I. Gen. Laws § 38-2-2 (2007).....................................................................................................18 R.I. Gen. Laws § 40-11-6 (2007)...................................................................................................30 R.I. Gen. Laws § 40-11-7 (2007)...................................................................................................30
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R.I. Gen. Laws § 40-11-7.1 (2007)................................................................................................38 R.I. Gen. Laws § 40-11-12 (2007).....................................................................................18, 26, 31 R.I. Gen. Laws § 40-11-12.1 (2007)..................................................................................28, 31, 37 R.I. Gen. Laws § 40-11-12.2(a) (2007) ...................................................................................28, 29 R.I. Gen. Laws § 40-11-13 (2007).................................................................................................18 R.I. Gen. Laws § 40-11-14 (2007).................................................................................................38 R.I. Gen. Laws § 45-24.2-7 (2007)................................................................................................44 R.I. Gen. Laws § 42-72-2 (2007)...................................................................................................29 R.I. Gen. Laws § 42-72-4 (2007).............................................................................................29, 30 R.I. Gen. Laws § 42-72-5 (2007)...................................................................................................30 R.I. Gen. Laws § 42-72-7 (2007)...................................................................................................18 R.I. Gen. Laws § 42-72-8 (2007)...................................................................................................18 R.I. Gen. Laws § 42-72-10 (2007).................................................................................................29 R.I. Gen. Laws § 42-72.1-1, et seq. (2007)....................................................................................30 R.I. Gen. Laws § 42-73-7(6) (2007) ..............................................................................................45 R.I. Gen. Laws § 42-73-9.1 (2007)..........................................................................................45, 46 R.I. R. Juv. P. R. 17(c) (2007) .......................................................................................................29
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I. INTRODUCTION This lawsuit is brought by seven Named Plaintiff Children in Defendants’ foster
care custody who assert that Defendants are harming them, as well as the Class they seek to represent, in violation of their federal constitutional and statutory rights to basic safety, protection, and care while in state custody. Although federal courts across the country have exercised their jurisdiction to hear similar claims brought by plaintiff children against their state custodians, Defendants ask this Court to take the extraordinary act of declining to exercise its jurisdiction over Plaintiffs’ federal claims and dismiss this case on the basis of four legally and factually flawed arguments.
First, Defendants levy a variety of complaints about the Next Friends. But Defendants fail to tie those complaints to the applicable legal standard for Next Friends, making Defendants’ complaints legally irrelevant. The Next Friends have presented clear, uncontroverted evidence that they meet the standard; they are truly dedicated to the best interests of the Named Plaintiffs on whose behalf they appear and are thus suitable. Even if these Next Friends were inappropriate, the proper remedy under Rule 17(c) would be for the Court to replace them with alternative representatives rather than, as Defendants request, dismiss the case.
Second, Defendants contend that the adjudication of Plaintiff Children’s federal claims in this Court would somehow interfere with Rhode Island Family Court proceedings. However, because the relief Plaintiffs seek is solely directed at Defendants, the executive branch officials who run Rhode Island’s foster care system and who are duty bound to protect all children in foster care custody, the interference that Defendants seek to create is illusory. The relief Plaintiff Children seek from the systemic deficiencies plaguing the Department of Children, Youth and Families (DCYF) is not
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available in annual Family Court review hearings and, if granted in this case, would not interfere with the Family Court’s limited appraisal of DCYF actions in individual cases. Defendants have exclusive responsibility for ensuring the safety of foster children, and only reforms undertaken by Defendants can remedy the overwhelming failures that continue to endanger Rhode Island’s foster children. Younger abstention is therefore unwarranted.
Third, Defendants suggest that Plaintiffs are seeking to overturn individual Family Court judgments, and ask the Court to invoke Rooker-Feldman. The premise of Defendants’ position is wrong; Plaintiffs are challenging Defendants’ administration of DCYF, and are not seeking to overturn individual Family Court judgments. Thus, the Rooker-Feldman doctrine does not apply.
Last, Defendants argue that the Child Advocate lacks the authority to bring this case in federal court and that, therefore, this case should be dismissed. This argument is utterly meritless and in any event is no basis for dismissal. The Child Advocate’s role in this case is not as a party, but as one of five attorneys of record for Plaintiff Children. Regardless of the Child Advocate’s participation as co-counsel, and even if she were to exit the case forthwith, Plaintiff Children’s pending federal case is properly before this Court, as they are and would remain represented by four other attorneys of record. There is thus no need to reach this issue. Even if there were, in participating as co-counsel in this case, the Child Advocate is completely within her explicit statutory authority and mandate, which permits her to act as co-counsel and raise Plaintiffs’ claims in her choice of forum. There is no statutory requirement that the Child Advocate only bring claims in Family Court, but even if there were, that would not in any way defeat this Court’s
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subject matter jurisdiction over Plaintiff Children’s federal claims, as this Court’s jurisdiction is defined solely by federal, not state, law and this case is based purely on federal law.
Because Defendants have not set forth any valid justification for this Court to refrain from its judicial obligation to hear Plaintiff Children’s federal claims, Defendants’ Motion to Dismiss should be denied in its entirety. II. PROCEDURAL HISTORY
Plaintiffs filed this suit in June 2007 and amended their complaint in September of that year. In October 2007, Defendants filed a Motion to Dismiss, and in January 2008, after the matter was fully briefed by the parties, the Court heard oral argument. At oral argument, the Court ordered an evidentiary hearing on the issue of whether the Next Friends who have brought the case on behalf of the minor Named Plaintiffs are appropriate. In anticipation of that hearing, Plaintiffs filed a supplemental brief further addressing the suitability of the three Next Friends. At the evidentiary hearing, held on January 23 and 24, 2008, the three Next Friends, Mary Melvin, Kathleen Collins, and Gregory Elliott, testified.1 Defendants called no witnesses.
At the conclusion of the proceeding, the Court ordered further briefing on four issues: the Next Friends’ suitability to bring this action, the applicability of the Younger and Rooker-Feldman doctrines, and the authority of the Child Advocate to bring this case in federal court, the last of which Defendants had not themselves raised. Plaintiffs submit
1During the hearing, Defendants questioned the propriety of the Next Friends’ pursuing Plaintiffs’ claims in federal court rather than in each child’s individual Family Court annual review. In response, Plaintiffs sought to introduce testimony of two additional witnesses regarding the inadequacy of such Family Court reviews as a forum to redress the injuries suffered by the Named Plaintiffs. The Court denied Plaintiffs’ offer of proof.
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this supplemental briefing in response to Defendants’ supplemental briefing on these
specific issues.
III. THE NAMED PLAINTIFF CHILDREN ARE REPRESENTED BY FULLY QUALIFIED NEXT FRIENDS Defendants argue that none of the Next Friends are suitable representatives of the
Named Plaintiff Children and that, as a consequence, this case should be dismissed. They
are incorrect on both counts. All three Next Friends meet the applicable legal standards
and, even if they did not, dismissal would be the wrong remedy under Rule 17(c) because it would unjustly deny the Named Plaintiff Children their right to be heard in this Court.2
Defendants do not suggest that the Next Friends are motivated by anything other
than the best interests of the children on whose behalf they appear. The crux of
Defendants’ argument is that the Next Friends cannot be truly dedicated to the best
interests of the Named Plaintiffs simply because they did not take certain specific actions on behalf of the Named Plaintiff Children before filing this suit.3 Yet none of the those
supposed omissions were prerequisites to filing this suit and none have any bearing on
the Next Friends’ qualifications to represent the minor Named Plaintiffs. Defendants’
arguments are groundless and in any event are not a basis for dismissal.
2 In the interest of economy, Plaintiffs do not repeat here all of the legal and factual discussions concerning adequacy of Next Friends contained in their last two briefs but instead incorporate those discussions by reference. (See Pls.’ Mem. of Law in Objection to Defs.’ Mot. to Dismiss (“Pls.’ Resp.”) at 10–20; Pls.’ Mem. of Law Submitted in Conjunction with Evidentiary Hr’g Regarding Adequacy of Pls.’ Next Friends (“Pls.’ Hr’g Mem.”) at 4–13.) 3 Defendants’ arguments are made with the goal of dismissal, not with Plaintiff Children’s best interests at heart, and should not be taken as expressions of concern that the Next Friends are not acting in the best interests of the minors they represent. In re Zawisza, 73 B.R. 929, 936 (Bankr. E.D. Pa. 1987) (“[W]e are reluctant to heed the claims of an adverse party that the standing of one purporting to act on behalf of an incompetent is lacking”).
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A. The Named Plaintiff Children Cannot Vindicate Their Rights Without the Assistance of Next Friends
As minors, the Named Plaintiff Children lack legal capacity to bring this action on
their own. They must rely instead on capable adults to protect their interests and make
decisions on their behalf. The Named Plaintiff Children have neither natural nor duly
appointed guardians who can represent them in this matter. Their natural guardians—
their parents—have clear conflicts of interest, having already lost custody of the Named
Plaintiff Children, in most cases permanently, after abusing or neglecting them. (See
generally Am. Compl. at 10–34.) A conflict of interest also precludes their duly
appointed guardian, the Department of Children, Youth and Families (DCYF), from representing the Named Plaintiff Children, since its Director is a Defendant in this case.4
See Dev. Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982)
(recognizing that proceeding by next friend is proper “when it appears that the minor’s
general representative has interests which may conflict with those of the person he is
supposed to represent”) (internal quotation omitted). Accordingly, Plaintiff Children need the assistance of next friends in order to vindicate their rights in federal court.5
4 The guardians ad litem and court-appointed special advocates who represent the Named Plaintiffs in their Family Court proceedings are not general guardians for purposes of Rule 17(c)(1). (See Pls.’ Hr’g Mem. at 5–6.) Thus, their representation in Family Court does not obviate their need for next friends to proceed in federal court. 5 This case is quite different from Developmental Disabilities, the single case in which the First Circuit has decided whether a putative next friend should be permitted to litigate on behalf of an incompetent person pursuant to Rule 17(c). The putative next friend there sought to sue on behalf of mentally retarded residents of a state institution. One of the plaintiffs was a minor whose natural guardian, his mother, opposed the next friend’s actions; a second was an adult whose duly appointed guardian, her brother, also disapproved of the suit. Dev. Disabilities Advocacy Ctr., 689 F.2d at 285–86. The First Circuit found no abuse of discretion in the district court’s decision not to permit the putative next friend to proceed, given that these plaintiffs were otherwise competently represented by their guardians and that there was no evidence of any conflict between the
cont.
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B. The Named Plaintiff Children Are Represented by Proper Next Friends
Before filing this case, Plaintiffs’ counsel made diligent efforts to find adults with personal connections to the Named Plaintiffs, who would be willing and capable of undertaking the responsibilities that serving as next friends entails and who were not barred from doing so by any conflict of interest. (See Alston Decl. (Oct. 19, 2007) at ¶¶ 7–8 (attached as Ex. 1 to Pls.’ Resp.).)
These efforts revealed that each of the Named Plaintiff children lacked a network of stable adults [who were] willing and able to represent them in a federal lawsuit. The persons most closely connected to the children, including foster parents, guardians ad litem, or relatives, either posed a potential conflict or expressed concern regarding possible retaliation from the Department [of Children, Youth and Families] or other state entities and declined to become involved. (Alston Decl. (Oct. 19, 2007) at ¶ 8.) Despite these obstacles, counsel ultimately found qualified adults with personal connections to David T. and Caesar S. who agreed to serve as their next friends. While counsel were unable to find a single adult who had an existing personal relationship with Danny and Michael B., Sam and Tony M., or Deanna H. and her sisters, and who was also willing and able to stand up publicly for those children, counsel nevertheless located a fully qualified, committed next friend to represent those Named Plaintiff Children.6
cont. plaintiffs and their representatives. Dev. Disabilities Advocacy Ctr., 689 F.2d at 286. Here, the conflicts of interest that preclude representation of the Named Plaintiff Children by their parents or DCYF squarely distinguish this case from Developmental Disabilities. 6 Deanna H.’s sisters were adopted after the Complaint was filed and are no longer Named Plaintiffs in this case.
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As established by their testimony, all three Next Friends are committed to
pursuing the best interests of the Named Plaintiff Children they represent and seeking justice on their behalf. The law requires nothing more.7
1. Mary Melvin Is a Qualified and Appropriate Next Friend for David T.
Mary Melvin, the Next Friend for David T., demonstrated in her testimony on
January 23, 2008, that she is truly dedicated to David’s best interests and that she has no
other motive for bringing this suit on his behalf. Ms. Melvin, David’s former DCYF
foster parent, showed beyond a shadow of a doubt that she loves David and cares deeply
for him. David was only a toddler when he went to live with Ms. Melvin, and he
remained in her care until around the age of five. (Melvin Test. at 12.) During that time,
“we grew very close together. He became very attached to me and I to him.” (Melvin
Test. at 13.) David called Ms. Melvin “Mom” and “really didn’t want me out of his
sight,” Ms. Melvin testified. (Melvin Test. at 13, 16.) Ms. Melvin testified that, had she
been able to do so, she would have adopted David, demonstrating her willingness and
7 In previous filings, Plaintiffs fully briefed the legal standards for qualification to serve as a next friend pursuant to Rule 17(c)(2). (See Pls.’ Resp. at 14–17; Pls.’ Hr’g Mem. at 7–10.) Those analyses of applicable law are not repeated here. In brief, courts assessing the adequacy of a next friend to represent a child in state custody have looked to “the good faith of those claiming to speak for the infant” and whether “the ‘next friend’ is motivated by a sincere desire to seek justice on the infant’s behalf.” Ad Hoc Comm. of Concerned Teachers v. Greenburgh #11 Union Free Sch. Dist., 873 F.2d 25, 30–31 (2d Cir. 1989); accord Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 265123, at *9 (S.D.N.Y. May 22, 1998) (quoting Ad Hoc Comm. of Concerned Teachers); Olivia Y. v. Barbour, No. 3:04CV251LN, slip op. at 10 (S.D. Miss. Mar. 11, 2005) (order granting class certification) (finding next friends to plaintiff foster children adequate because each was “generally knowledgeable about the nature and purpose of this litigation, and has a good faith interest in the named plaintiffs’ welfare and in the prosecution of this litigation”) (attached to Pls.’ Resp. as Ex. 3).
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desire to make the most essential commitment to a child’s best interests that an unrelated adult can make. (Melvin Test. at 13.)
David left Ms. Melvin’s foster home because one of his family members had agreed to adopt him. (Melvin Test. at 14.) Ms. Melvin later learned that the adoption had not taken place and that David was “back in the shelter” and still in DCYF foster care. (Melvin Test. at 14.) Thereafter, even though Ms. Melvin was no longer caring for David in her home, she remained involved in his life and continued to do things to take care of him.
The bond that we had, that the two of us had, the social worker allowed me to go to the home, the shelter, and pick David up. And I would keep him for the day, and we would go out and eat or probably just go to the store, and I’d get him a little toy or something. We would spend the day together, and I did this until he was moved again. . . . [O]n occasions I would take him to church with me, but it depends on the social worker. I would always have to get permission, and they would let me pick him up and do things with him. (Melvin Test. at 14–15.) Ms. Melvin continued to take David to doctors’ appointments and counselling sessions after he left her home. (Melvin Test. at 15.) Unfortunately, Defendants kept moving David from one institutional placement to another and eventually, “the last place that I called, they didn’t give me any information on him,” Ms. Melvin testified. (Melvin Test. at 17.) Ms. Melvin stated that she was contacted by the Office of the Child Advocate in 2007 and told that a lawsuit was being planned on behalf of David and other children in DCYF custody. (Melvin Test. at 17–19.) She described herself as feeling “really surprised,” “shocked,” and “upset” to learn that David was still in foster care after 12 years. (Melvin Test. at 18.) Ms. Melvin testified that she agreed to be David’s Next Friend in the lawsuit. (Melvin Test. at 19.)
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I told them that I didn’t mind being a next friend for David because David was a child that was a part of my family and anything that I could do to be supportive to him and help things be better for him, I was willing to be a part of that. . . . I’m hoping that being a next friend for David would help make things better for him, that we could continue to create a bond. I want David to know that anything I can do to help him or to be there for him, I’m a willing participant. (Melvin Test. at 19–20.) Ms. Melvin also stated that she is prepared to make decisions for David in this matter (Melvin Test. at 20–21), but she also expressed a holistic perspective on the role of a “next friend,” one that is not limited simply to being a representative in litigation: My understanding is that a next friend would be someone that cares about the well-being of the child, that want to be a part of whatever is needed for this child that he may be a productive human being when he become of age, just loving him and letting him know that you care and to fill in wherever is needed. (Melvin Test. at 19.) The unmistakable import of Ms. Melvin’s testimony was that she loves and cares for David, that she wants to help him, and that her sole motive in bringing this case on his behalf is to “make things better for him.” (Melvin Test. at 19.) Nothing in her testimony remotely suggests that she has any agenda in pursuing this action other than to help David and to advance his best interests. Moreover, although not legally required, it is clear from her testimony that she has had a significant relationship with David and would have been more involved in his life in recent years had DCYF permitted David to maintain his connections with the woman he called “Mom” while the agency cycled David through a dozen institutional placements over the last decade. Defendants offered no witnesses to impeach or counter Ms. Melvin’s testimony. In short, Mary Melvin is “truly dedicated to the best interests of the person on whose behalf [s]he seeks to litigate.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990).
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She demonstrated “a sincere desire to seek justice on . . . [David’s] behalf.” Ad Hoc Comm. of Concerned Teachers, 873 F.2d at 30–31. This Court should conclude that she is an appropriate, fully qualified next friend for David, and it should permit her to proceed on his behalf. See, e.g., Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at *3 (E.D. Mich. Apr. 17, 2007) (finding former foster mother of named plaintiff’s sibling suitable as next friend); Clark K. v. Guinn, No. 2:06-CV-1068-RCJRJJ, 2007 WL 1435428, at *6 (D. Nev. May 14, 2007) (finding former foster parent adequate as next friend); Olivia Y. v. Barbour, No. 3:04CV251LN, slip op., at 9–10 (S.D. Miss. Mar. 11, 2005) (finding one former foster parent and friend of another former foster parent suitable as next friends) (attached to Pls.’ Resp. as Ex. 3).
2. Kathleen Collins Is a Qualified and Appropriate Next Friend for Caesar S.
Kathleen Collins, the Next Friend for Caesar S., demonstrated through her testimony that she is truly dedicated to Caesar’s best interests. Ms. Collins was Caesar’s school psychologist throughout the 2006–2007 academic year. (Collins Test. at 33, 37.) She initially got to know Caesar when she evaluated him for a special education referral. (Collins Test. at 34.) Ms. Collins also observed Caesar in the classroom, sat in on an individualized educational plan meeting for him, “was involved with Caesar in his classroom setting and occasionally outside of his classroom setting,” and monitored his therapeutic progress over the course of the year. (Collins Test. at 34, 37–38.)
Ms. Collins devoted time to forming a relationship with Caesar. (Collins Test. at 34.) She worked with him one-on-one on numerous occasions and saw him at least three or four times every week. (Collins Test. at 34–37.) During the course of the school year, Ms. Collins got to know Caesar well, as her vivid descriptions of him reveal.
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Caesar is a very active child, doesn’t necessarily trust adult relationships very well. So he’s a very busy little guy, questions directions, questions redirection, questions rules, but also can be incredibly playful and smiling and cheerful. And his moods change back and forth very rapidly depending on what he wants to do what you’re trying to encourage him to do. He thrived really well on praise. So if he came to see me individually, he absolutely adored the idea that somebody would spend time with him individually, would encourage him to draw and talk and share his feelings. (Collins Test. at 35.) Sometimes he would be walking very proudly at the head of his line, and then he would be thrilled to get praise when he was doing the right thing. (Collins Test. at 36.) When asked whether she and Caesar established a relationship, Ms. Collins’s answer was unequivocal: “Absolutely.” (Collins Test. at 38.) Asked whether they established a bond, she answered, “I would say so, yes.” (Collins Test. at 38.) Ms. Collins last saw Caesar in late May or June 2007, when the school year ended. (Collins Test. at 38.) Although she would no be longer working at Caesar’s school for the 2007–2008 academic year, she “went to check on him at the beginning of this school year.” (Collins Test. at 39.) She discovered, however, that Caesar “was gone, that he moved out of the district.” (Collins Test. at 39.) Since then, Ms. Collins testified, she has tried, unsuccessfully, to find some information on Caesar, “to at least know where he is because I had a lot of concerns about him, his being so young and seemingly out on – out on his own, in a sense, in the world.” (Collins Test. at 39.) Ms. Collins testified that she was contacted by the Office of the Child Advocate “around the end of the school year last year,” while she was still Caesar’s school psychologist. (Collins Test. at 39–40.) She thought the suit “was a timely action to be taken” and “an important endeavor” because she had “been very concerned about Caesar’s history in particular:”
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What concerns me about Caesar is he’s very young. He’s only six, he would be six now, he was five when I knew him, but that he still had no permanent home; and it just seemed that there was nobody that was able to care for him, and that just seemed really tragic to me that here was this totally adorable little boy, albeit with some behavior problems, but who absolutely deserved and needed permanent care and wasn’t getting that. So that was a major concern for me. (Collins Test. at 41.) After careful consideration, Ms. Collins agreed to serve as Caesar’s Next Friend and to litigate this case on his behalf. (See Collins Test. at 42–43.) As she explained, I believe this is an absolutely important case. . . . [T]his child deserves justice, and many, many other children deserve that justice. And there didn’t appear to be anybody else that was really willing to do this for this child. There didn’t appear to be anyone else who was available, so I chose to make myself available. (Collins Test. at 43.) Ms. Collins expressed a clear understanding of the responsibilities involved in serving as Caesar’s Next Friend: “I’m here to represent the interests of that particular child in getting justice from the system, to assist him and support him in seeking some sort of support and justice.” (Collins Test. at 42.) She testified that she is “[a]bsolutely” prepared to represent Caesar in this case until the lawsuit is over and to be “available and present for whatever needs to be done in order to see the case through, in order to support the child’s rights through this case.” (Collins Test. at 44.) Ms. Collins’s testimony clearly establishes her true dedication to Caesar’s best interests. She demonstrated that she understands and is committed to fulfilling the responsibilities that serving as his Next Friend entails and that she did not accept this role lightly, but rather with full knowledge of the responsibilities she would have. Furthermore, while not required for acting as his Next Friend, she has developed a significant relationship with Caesar. She plainly cares for him and is concerned about his
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well-being. In the course of her work with Caesar, Ms. Collins identified his specific needs and demonstrated a willingness to work to meet those needs. Her manifest abilities to discern Caesar’s needs and to find ways of meeting those needs, critical skills of her profession, make her particularly well-suited to the role of next friend. She has no conflict of interest and nothing in her testimony even hinted at any ulterior motive for bringing this suit on Caesar’s behalf. Defendants offered no witnesses to impeach or counter Ms. Collins’s testimony.
Because the evidence overwhelmingly demonstrates that Ms. Collins is “truly dedicated to the best interests of the person on whose behalf [s]he seeks to litigate,” Whitmore, 495 U.S. at 163, and because she “has a good faith interest in . . . [Caesar’s] welfare and in the prosecution of this litigation,” Olivia Y., No. 3:04CV251LN, slip op., at 10, this Court should find that she is a fully qualified and appropriate Next Friend for Caesar, and it should permit her to proceed on his behalf. See, e.g., id. at 9–10 (finding friend of foster parent who had previously cared for named plaintiff suitable as next friend); Marisol A., 1998 WL 265123, at *9 n.14 (finding staff attorney who worked at teenage homeless shelter suitable as next friend).
3. Gregory Elliott Is a Qualified and Appropriate Next Friend for Sam and Tony M., Deanna H., and Danny and Michael B.
In his testimony on January 24, 2008, Professor Gregory C. Elliott demonstrated that he is truly dedicated to the best interests of the five Named Plaintiffs on whose behalf he seeks to litigate. Dr. Elliott, an associate professor of Sociology at Brown University, testified that his “two major areas of research to date are in child maltreatment and the causes and consequences thereof.” (Elliott Test. at 5.) He described his most recent research, which concerns the concept of “mattering,” and the disastrous consequences of
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being made to feel that one does not matter, as “very applicable” to the lives of the Named Plaintiffs he represents because “it is very often the case that these children . . . [in] state care are in situations where they do not really believe that they matter to individuals or to the agency that is taking care of them [i.e., DCYF], at least nominally taking care of them.” (Elliott Test. at 6–7.)
Dr. Elliott does not know Sam and Tony M., Deanna H., or Danny and Michael B. personally. (Elliott Test. at 7.) Nevertheless, after reviewing the Complaint that Plaintiffs’ counsel planned to file, he agreed to bring this suit on those Named Plaintiff Children’s behalf because he “saw a dire need as reflected in the Complaint.” (Elliott Test. at 9.) “I think these children, as I have learned from the documents that I have been given, are in dire circumstances, circumstances that are detrimental to their mental and physical health, and someone needs to step in to see to it that they are relieved of these distresses.” (Elliott Test. at 10.)
Dr. Elliott considered the implications for the Named Plaintiff Children of being involved in federal litigation and described weighing the possibility that the children’s participation might involve some stress against the difficulties that the children already face in DCYF custody:
Based on my knowledge and expertise and on what I read in the documents that were filed, I came to the conclusion that while there might be some discomfort involved, the amount of stress or discomfort that would be involved in their participation is so much less than the circumstances that they are under now that I think it would be important for them to take part in this case. (Elliott Test. at 11.) Asked why he thought he could represent Sam, Tony, Deanna, Danny, and Michael despite not having yet met them, Dr. Elliott explained: “I know enough about the
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circumstances that they face, and I know enough thanks to my and others’ research about the consequences of the circumstances that they face, and I know that those consequences are quite dire.” (Elliott. Test at 11.)
Federal courts have permitted next friends like Dr. Elliott to proceed on behalf of plaintiff children with whom they have no prior relationship, where the putative next friends have shown themselves to be committed to the children’s best interests. See, e.g., Marisol A., 1998 WL 265123, at *8–9 (denying motion to dismiss next friends of plaintiff children in foster care where “the Court is satisfied that they understand their role as next friends, and that they are motivated only by a sincere desire to seek justice for the named plaintiffs,” even though “many of the next friends conceded either that they had not met or had had very limited contact with the plaintiffs they represent”); Jeanine B. v. Thompson, 877 F. Supp. 1268, 1287–88 (E.D. Wis. 1995) (finding prominent community members with demonstrated interest in children’s issues adequate as next friends for children in foster care); Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y. 1976) (permitting next friend, who did not know plaintiff children before agreeing to serve as their next friend, to litigate on their behalf because he had “manifested an interest in their welfare”).8 While a prior relationship between a next friend and a named plaintiff “may
8 See also Kenny A. v. Perdue, No. 1:02-cv-1686-MHS (N.D. Ga. Aug. 10, 2004) (order for substitution of next friend) (approving juvenile public defender, originally the next friend of two named plaintiffs, as next friend for a third, where she had demonstrated her commitment to protecting the best interests of minor children in state foster care custody) (motion and order attached as Ex. 1); Kenny A. v. Barnes, No. 1:02-cv-1686-MHS (N.D. Ga. Oct. 18, 2002) (order for substitution of next friend) (approving attorney whose bar admission was pending, who worked in juvenile justice and, before that, as a child advocate in deprivation and abuse cases, as next friend for plaintiff child, where she was familiar with child’s circumstances and was dedicated to child’s best interests) (motion and docket entry attached as Ex. 2). In Charlie H. v. Whitman, No. 99-3678-GEB,
cont.
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be one means by which the would-be next friend can show true dedication to the best
interests of the person on whose behalf he seeks to litigate,” it is not required. Sánchez-
Velasco v. Sec’y of Dep’t of Corr., 287 F.3d 1015, 1026 (11th Cir. 2002); accord González
v. Reno, 86 F. Supp. 2d 1167, 1185 (S.D. Fla. 2000) (requiring putative next friend to
show “some relationship or other evidence that demonstrates the next friend is truly
dedicated to the interests of the real party in interest”) (emphasis added), aff’d 212 F.3d
1338 (11th Cir. 2000); see also Bowen v. Rubin, 213 F. Supp. 2d 220, 227 (E.D.N.Y.
2001) (“a long-term relationship between a proposed next friend and the individual in
need of representation is not required”).9
Dr. Elliott demonstrated through his testimony that, notwithstanding his not yet
having met the five Named Plaintiffs on whose behalf he appears, he is truly dedicated to
their best interests and entirely capable of handling the responsibilities that the role of
cont. (D.N.J.), one of the next friends was a schoolteacher who had no prior relationship with the children she represented. (Posluszny Dep. Tr. at 8–12, 21–23.) Another next friend, an attorney and registered nurse who had at one time worked as a public advocate in matters such as abuse and neglect cases, also had no prior relationship with the child she represented. (Maraziti Dep. Tr. at 8–10, 12.) Two other next friends, one a family law attorney, the other a minister, also had no prior relationship with children they represented. (Dargay Dep. Tr. at 6–7, 17, 36–37, 57–59; Bouton Dep. Tr. at 9, 14) (Transcript excerpts attached as Ex. 3.) 9 Because Plaintiffs have analyzed this question in previous briefs, that analysis is not repeated here. (See Pls.’ Resp. at 16–17; Pls.’ Hr’g Mem. at 8–10.) In brief, the notion that a next friend should have a “significant relationship” with the person she represents is based on dictum in Whitmore, where the Supreme Court commented that a decision from the United States District Court for the Northern District of Georgia “further suggested that a ‘next friend’ must have some significant relationship with the real party in interest,” but made no further mention of it and did not factor it into its analysis. 495 U.S. at 163–64 (citing Davis v. Austin, 492 F. Supp. 273, 275–76 (N.D. Ga. 1980)). In the one decision in which the First Circuit has applied the Whitmore criteria, it did not mention the “significant relationship” dictum. See Figueroa v. Rivera, 147 F.3d 77, 82 (1st Cir. 1998). Significantly, Whitmore, Davis, and Figueroa were all federal habeas corpus cases where the real parties in interest were prisoners, not children.
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Next Friend entails. While he does not yet know the five children he has agreed to stand up for, his professional expertise makes him particularly well-qualified to understand and have insight into their individual needs in this case. It is uncontroverted that Dr. Elliott has no conflicting motivation or commitments that would in any way compromise his ability to represent Sam, Tony, Deanna, Danny, and Michael in this action and that his only motive is a good-faith dedication to their best interests. Defendants offered no witnesses to impeach or counter Dr. Elliott’s testimony. Because Dr. Elliott has demonstrated the necessary commitment to pursue their best interests in this litigation, this Court should find him to be a suitable Next Friend for Sam and Tony, Deanna, and Danny and Michael and permit him to litigate this case on their behalf.
4. Defendants’ Arguments for Disqualifying Mary Melvin, Kathleen Collins, and Gregory Elliot as Next Friends Are Baseless and Should Be Rejected
Faced with abundant evidence of the Next Friends’ true dedication to the Named Plaintiff Children they represent and sincere desire to seek justice on their behalf, Defendants resort to arguments that have no basis in law and no bearing on the Next Friends’ suitability, inventing out of whole cloth a series of requirements that the Next Friends have supposedly failed to meet. Not only do these contrived requirements lack any legal basis, their application would effectively preclude most foster children from ever being able to seek relief in the federal courts, defeating the purpose of Rule 17(c).
Defendants appear to argue that the Next Friends do not have enough knowledge about or contact with the Named Plaintiff Children to be truly dedicated to their best interests, declaring that the Next Friends have “a total lack of knowledge of the children’s current lives,” (Defs.’ Mem. at 8–10). This assertion misrepresents the Next Friends’ testimony and unreasonably faults them for not remaining fully abreast of any changes in
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the Named Plaintiff Children’s placements and services since the Complaint was filed, when even counsel have received no discovery in this case as of yet. The Next Friends reviewed all of the factual allegations in the Complaint before it was filed and reasonably relied on the information provided by their attorneys.
Defendants’ position partly rests on the irrelevant fact that the Next Friends have not reviewed certain documents such as Family Court orders, DCYF case plans, medical records, and educational records (see, e.g., Defs.’ Mem. at 2–4), though Defendants fail to mention those documents are confidential and under the control of Defendants, and that there has been no discovery in this case. See R.I. Gen. Laws §§ 15-7-7(f), 38-22(4)(i)(C), 40-11-13, 42-72-7, 42-72-8 (2007). Similarly, Family Court proceedings are closed. R.I. Gen. Laws § 14-1-30 (2007). As to contact with the Named Plaintiffs, DCYF controls access to the children in its custody. R.I. Gen. Laws § 40-11-12(b) (2007). Defendants can cite no authority (as there is none) for the proposition that a putative next friend must review any particular documents (let alone confidential documents that are not easily available before discovery) in order to bring litigation on behalf of an infant. Nor is there any requirement that a putative next friend have contact with a child to whom she has no access before filing suit on the child’s behalf against the child’s very custodians. Cf. In re Zawisza, 73 B.R. at 936 (noting “absurdity” of arguing that next friend should have communicated with incompetent before taking legal action, where defendant admitted fact of incompetence). Likewise, there is no legal authority for Defendants’ novel position that a putative next friend must undertake an independent verification of the facts alleged in a complaint that has been drafted by counsel, and must have personal knowledge of those facts. (Defs.’ Mem. at 2–4, 7, 10.)
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Defendants also fault the Next Friends for not “voic[ing] their concerns to the individual child’s CASA or guardian ad litem or before the Rhode Island Family Court.” (Id. at 10.) Again, this argument has no basis in law, as Family Court proceedings are closed and a putative next friend is not required to exhaust other avenues on behalf of a child before bringing the child’s federal constitutional and statutory claims in federal court.
Defendants complain that the Next Friends cannot show support for this lawsuit from the natural relatives, foster parents, and CASAs or GALs of the Named Plaintiff Children. (See id. at 2, 3, 5, 8, 10.) Like Defendants’ other arguments, this assertion has no bearing on whether the Next Friends are suitable. Even worse, it suggests that a federal court should not hear the constitutional and statutory claims of a child who has been harmed while in state custody unless the child’s representative can show broadbased support for the litigation on the part of various individuals who may have opinions about the case but are not parties to it.10 To impose such a restriction would make it essentially impossible for children in foster care to ever have claims against their state custodians heard by a federal court.
As to whether the Plaintiff Children themselves support this litigation, the Next Friends have not yet been able to discuss the matter with them because they have not yet
10 The degree of involvement of these individuals in Plaintiff Children’s lives varies widely and cannot be taken for granted. Even GALs and CASAs often have little or no contact with the children whom they are assigned to represent in Family Court, given that they carry average caseloads of 400 children each. See RI Family Court - Overview, http://www.courts.state.ri.us/family/overview.htm#departments (last visited Feb. 28, 2008). As recently as June 2007, when the Complaint was filed, at least one of the Named Plaintiffs had never met the GAL who had represented him for years. (Alston Decl. (Oct. 19, 2007) at ¶ 8.)
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had access to the children, who are in Defendants’ custody. Given the Next Friends’ testimony that they are committed to the best interests of the children on whose behalf they appear, they are undoubtedly concerned with those children’s wishes and can be expected to take those wishes into account in the due exercise of their responsibilities as next friends, once Defendants grant them access to the children. At the same time, it must be remembered that the seven Named Plaintiffs are children. Five of them are under the age of ten, the youngest only sixteen months old. To ask whether six-year-old Caesar or nine-year-old Tony “supports” this litigation ignores both the legal and practical realities of their minority. Even the eldest of the Named Plaintiffs, David, is only fourteen, and Ms. Melvin’s testimony surely puts to rest any concerns that she would act in disregard of his wishes.
Defendants’ speculations about some theoretical “detrimental effect” on the Named Plaintiff Children from being “subjected” to federal litigation are at once presumptuous, disingenuous, and irrelevant. (See Defs.’ Mem. at 2, 4–5.) First, the suggestion that litigation before this Court would have some hypothetical “detrimental effect” on the Named Plaintiff Children that would be prevented by litigating their claims in individual proceedings in Family Court—Defendants’ preferred forum—or elsewhere is entirely unfounded.11 Second, it cannot be presumed that children whose civil rights have been violated would suffer a “detrimental effect” by participating in a proceeding at which those rights are vindicated. Even in the unlikely event that Defendants were to compel a child to testify, the Court and counsel would certainly take steps to minimize any possible trauma from the experience. Should a child wish to be heard, of course,
11 See infra.at note 49.
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there would be no reason to assume that the experience of telling his or her story, of having a voice, would be a detrimental one; indeed, the effect could be quite the opposite. Finally, if the decision to seek redress of the harms suffered by the Named Plaintiff Children by filing this suit has any relevance to the question of the Next Friends’ suitability, it demonstrates that they are dedicated to the children’s best interests. In re Zawisza, 73 B.R. at 936 (presuming that next friend had incompetent’s best interest at heart, given nature of proceeding and relief sought).
Lastly, Defendants’ claim that the Next Friends are inadequate because they lack “significant relationships” with the children they represent is unpersuasive and ignores the tragic reality of the Named Plaintiffs’ lives in DCYF custody. (See Defs.’ Mem. at 9– 10.) First, it is factually inaccurate with respect to Ms. Melvin and Ms. Collins; both have significant relationships with the children on whose behalf they appear. Second, a significant relationship is not legally required under Rule 17(c).12 Third, one of the very harms that Plaintiff Children have suffered is the disruption and destruction of relationships with adults. Defendants’ moving children from one placement to another, particularly among institutional placements, denies the children the opportunity to develop and maintain meaningful relationships. David’s separation from Ms. Melvin and his subsequent decade-long deterioration in a series of institutional placements is but one example of this widespread harm. See, e.g., Dwayne B., No. 06-13548, 2007 WL 1140920, at *3 (“Because the named Plaintiffs, like other foster children, have been removed from home and have had their preexisting ties to family and friends effectively
12 For a full analysis of this question, see Pls.’ Resp. at 16–17; Pls.’ Hr’g Mem. at 8–10; see also supra at note 9.
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severed, they have few, if any, significant relationships with adults who are suitable and willing to act as ‘next friends.’”).
Foster children have appeared in federal court to vindicate their rights through similar next friends in a legion of cases. See, e.g., id at *3 (finding former foster mother of named plaintiff’s sibling suitable as next friend); Clark K. v. Guinn, No. 2:06-CV1068-RCJ-RJJ, 2007 WL 1435428, at *6 (D. Nev. May 14, 2007) (finding former foster parent adequate next friend); Olivia Y., No. 3:04CV251LN, slip op., at 9–10 (finding one former foster parent and friend of another former foster parent suitable) (attached to Pls.’ Resp. as Ex. 3); Jeanine B., 877 F. Supp. at 1287–88 (finding prominent community members with demonstrated interest in children’s issues adequate as next friends for foster children); Marisol A., 1998 WL 265123, at *8–9 (finding next friends, most of whom were professionals in child welfare, appropriate notwithstanding that “many . . . had not met or had had very limited contact with the plaintiffs they represent”). To bar the Named Plaintiffs from vindicating their federal statutory and constitutional rights simply because they have not had the opportunity to develop close relationships with adults who can represent them in federal court would be to penalize them for being caught in a dysfunctional child welfare system that has harmed them and would deny them the opportunity to seek redress for those very harms in this forum.
This Court should find that Ms. Melvin, Ms. Collins, and Dr. Elliott are all qualified, suitable Next Friends, and it should permit them to prosecute this case on behalf of the Named Plaintiffs.
C. Inadequacy of Next Friends Would Not Justify Dismissal Rule 17(c) provides a mechanism for aggrieved people who themselves lack legal capacity to have their cases heard by a federal court. Defendants would have this Court
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disqualify the Next Friends and then dismiss this case altogether rather than appoint other representatives for the Named Plaintiffs. (Defs.’ Mem. at 11.) In taking this position, Defendants pervert the Rule’s purpose by attempting to use it as a basis for shutting the doors of federal court to children with justiciable federal claims. See Gardner v. Parson, 874 F.2d 131, 140 (3d Cir. 1989) (“The purpose of Rule 17(c) is to further the child’s interest in prosecuting or defending a lawsuit. . . . [It] was not intended to be a vehicle for dismissing claims.”).
Ms. Melvin, Ms. Collins, and Dr. Elliott are all fully qualified next friends for the Named Plaintiff Children on whose behalf they appear. Should this Court conclude otherwise, however, the proper remedy would be to grant Plaintiffs leave to provide substitute next friends, or to appoint individuals whom the Court finds more suitable to serve as next friends, so as to ensure that the Named Plaintiff Children are not denied access to federal court and prevented from obtaining justice. See Fed. R. Civ. P. 17(c)(2) (“The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.”) (emphasis added); see Gardner, 874 F.2d at 140 (“[w]e have found no case . . . holding that a court may decline to appoint a guardian with the result of allowing the child’s interests to go unprotected”); Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984) (finding reversible error where lower court failed to appoint next friend under Rule 17(c) for minor or to otherwise ensure that infant’s right to vindicate his statutory and constitutional claims was protected). IV. ABSTENTION UNDER YOUNGER v. HARRIS WOULD BE IMPROPER
Defendants would have this Court rule that children in foster care can never challenge Defendants’ actions as unconstitutional in any forum other than the Family
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Court. This would effectively deny Plaintiff Children any forum for their federal claims,
which, as explained below, cannot be prosecuted in Family Court. However, Defendants
misconstrue the law; concurrent federal court litigation while there is limited state court
activity involving the same plaintiff is completely permissible under our judicial system.13 Abstention by a federal court is “an extraordinary and narrow exception” to
this general principle and to the rule that a federal court must exercise the jurisdiction it has been constitutionally granted.14
Younger abstention applies only where the prosecution of a lawsuit in federal court threatens comity between state and federal governments.15 Further, abstention is
disfavored in civil rights lawsuits, particularly, as here, in the context of a section 1983 action.16 As this civil rights lawsuit does not implicate considerations of federal-state
comity and as no other grounds exist to invoke Younger abstention, this Court should retain its lawful jurisdiction over this action.17
A. This Case Meets None of the Threshold Issues That Implicate Younger Abstention
In order for a federal court to abstain from hearing a case pursuant to the Younger
doctrine, the case must satisfy each of three threshold criteria: (1) hearing the lawsuit
13 Even were there a parallel ongoing state court case, there could still be concurrent federal litigation. Exxon-Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 292 (2005) (“This Court has repeatedly held that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.’”) (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)). 14 See Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 189 (D.R.I. 2004) (quoting Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188–89 (1959). 15 See Huffman v. Pursue, Ltd., 420 U.S. 592, 601–602 (1975). 16 Corporación Insular de Seguros v. García, 680 F. Supp. 476, 479 (D.P.R. 1988); see also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 815 n.21 (1976) (“Indeed, the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention.”). 17 (See also Pls.’ Resp. at 20–43, incorporated herein as if fully set forth.)
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would undermine federal-state comity, see New Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 364 (1989); (2) the underlying state court proceeding is an enforcement proceeding, Río Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 69–70 (1st Cir. 2005); and (3) the federal lawsuit would interfere with the state court proceedings, id at 70. The failure of any one of these conditions bars the application of Younger. See id at 69–70. If the three threshold conditions are satisfied, only then can the Court turn to the Middlesex Test. See infra, note. 29.
1. This Lawsuit Does Not Undermine Comity As Plaintiff Children have set forth in their Opposition to the Motion to Dismiss, the driving force behind Younger abstention—the notion of comity—is not implicated in the instant lawsuit because the Rhode Island child welfare system is a joint federal-state program. (Pls.’ Resp. at 22–24.). This defect in Defendants’ argument is fatal to their motion to dismiss under the doctrine of Younger abstention.
2. The Family Court Proceedings Are Not Enforcement Proceedings
Even if principles of comity were implicated by Plaintiff Children’s suit, Defendants have failed to point to any concurrent, underlying enforcement proceedings involving Plaintiff Children’s claims, which is a prerequisite to the application of Younger. (See Pls.’ Resp. at 24–29.) Defendants allege that “the United States Supreme Court and the First Circuit have likened state court actions surrounding allegations of abuse and neglect to ‘enforcement proceedings.’” (Defs.’ Mem. at 20.) Plaintiff Children do not dispute that the initial proceedings by which the Family Court adjudicated them abused or neglected, removed them from their parents or guardians, and
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placed them into DCYF custody were enforcement proceedings.18 Such initial abuse and
neglect adjudications are typical enforcement proceedings in that they are coercive state
civil proceedings brought by the state to enforce state law against an individual, i.e., the
children’s parent or guardian. See Río Grande, 397 F.3d at 69 (defining an enforcement
action for Younger purposes). Likewise, while Plaintiff Children do not dispute that the
proceedings by which some of their parents’ parental rights were involuntarily terminated
were coercive enforcement proceedings, these proceedings were against their parents, not
Plaintiff Children.19 However, there are currently no pending enforcement proceedings
involving Plaintiff Children, and Plaintiff Children do not challenge any prior custody
determination placing them in DCYF custody any terminating parental rights. Therefore,
the cases cited by Defendants—which all apply Younger abstention analysis in the
context of child custody enforcement proceedings—are inapposite.20
18 See R.I. Gen. Laws § 40-11-12; see also Moore v. Sims, 442 U.S. 415, 423 (1979) (equating child custody proceedings with criminal proceedings and enforcement proceedings for purposes of Younger abstention). 19 See R.I. Gen. Laws § 15-7-7. See also McLeod v. Me. Dep’t of Human Servs., No. 99233-P-H, 1999 WL 33117123, *1–3 (D. Me. 1999), (abstaining from considering parent’s challenge to “cease reunification” order) aff’d 229 F.3d 1133 (1st Cir. 2000) (Table). 20 In Moore v. Sims the federal plaintiffs challenged their children’s removal into state custody and sought to enjoin a state court abuse-and-neglect enforcement proceeding. 442 U.S. 415, 418–419 (1979). The First Circuit in Río Grande clarified that the child removal proceeding in Moore was a civil enforcement action and thus that the application of Younger was appropriate. 397 F.3d at 69. In Malachowski v. City of Keene, 787 F.2d 704 (1st Cir. 1986),—a case which Defendants acknowledge as having “factual distinctions” from the case at bar—the parents of a child who had been committed to state custody sought an order returning their daughter to their custody. Id. at 708. Consistent with Moore, the First Circuit held that Younger applied to this type of civil custody proceeding. Id. Finally, in McLeod, 1999 WL 331171123, a parent who was in the midst of an ongoing child custody proceeding “in which the next step in the continuum is termination of parental rights” brought a federal lawsuit to enjoin the state court custody proceeding. Id. at *1. Again, Younger abstention applied to bar that proceeding challenging a state court custody determination. Id. at *1–3. In contrast, in the case at
cont.
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The only remaining state court proceedings that currently involve Plaintiff Children in any way are their annual Family Court reviews, which are clearly not enforcement proceedings. At those reviews, the Family Court simply reviews plans that DCYF staff have developed on behalf of each individual Plaintiff Child, which outline the child’s permanency goals and services to be provided. As a Family Court review is simply judicial review of DCYF executive action, and not an enforcement action, it cannot provide the basis for Younger abstention. See Río Grande, 397 F.3d at 69–70 (Younger only implicated where there is ongoing state court enforcement proceeding); Child Advocate v. Lindgren, 296 F. Supp. 2d at 192 (noting that, in the context of a consent decree, federal court review of DCYF action would not implicate Younger).
3. This Lawsuit Will Not Interfere with Any Family Court Proceeding
Even if comity were at issue and this federal lawsuit implicated a state enforcement proceeding—of which neither condition is satisfied here—abstention would still be unwarranted because Defendants have made no showing that this federal lawsuit will interfere with any state court proceedings involving the individual Plaintiff Children. “[W]here federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated.” Gwynedd Props., Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir. 1992); accord Río Grande, 397 F.3d at 70. Accordingly, this Court cannot abstain.21
cont. bar the parents are not parties and the Plaintiff Children do not challenge any custody proceedings. 21 (See also Pls.’ Resp. at 29–34.)
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a. The Family Court’s Decisions Are Not at Issue in This Lawsuit
Defendants’ abstention argument largely turns on the premise that, by allowing this lawsuit to proceed, this Court will somehow be required to rule on prior Rhode Island Family Court orders regarding individual Plaintiff Children and will therefore “interfere” with those proceedings. (Defs.’ Reply Mem. in Support of Mot. to Dismiss (“Defs.’ Reply”) at 30–31, 41.) But Defendants have provided no support for this baseless assertion. In the Amended Complaint, Plaintiff Children do not challenge any Family Court order. Instead, Plaintiff Children seek only prospective injunctive relief against Defendants, the executive actors, for which no analysis of prior Family Court decisions is required.
Much of Defendants’ interference argument relies on the Family Court’s purported ratification of the services and placements provided by DCYF and each service and permanency plan. (Id.) But Defendants mischaracterize the Family Court’s role. Under Rhode Island statute, the Family Court is required to review annually each Plaintiff Child’s permanency plan as developed by DCYF, and the only order the Family Court enters at that annual review is an order of permanency. (R.I. Gen. Laws §§ 40-1112.1(e), 40-11-12.2(a); Alston Decl., Ex. 5 at ¶¶ 7–8.) During this annual review, the Family Court does not approve or reject each specific placement to which DCYF may have moved the child. (Alston Decl., Ex. 5 at ¶ 8.; See also Ex. D-58 to Defs.’ Mot. to Dismiss22) Additionally, the statutes Defendants cite refer only to the Family Court’s
22 Defendants allege that this lawsuit would “abolish the Rhode Island Family Court’s ability to place a child or order” his or her treatment. (Defs.’ Reply at 53.) But in fact, the Family Court does not have the authority to place a child or to order specific treatment. Defendants’ concern is illusory.
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review of permanency plans, not any service plans. There appears to be no requirement
that the Family Court review any service plan, other than the original, and all objections
to a child’s service plan are heard in administrative proceedings, not in any Family Court
proceeding. 03 007 R.I. R. 0030(G)(2)(d).23
b. The Defendant Executive Actors Are Responsible for Plaintiff Children
As a matter of law, Defendants, not the Family Court, bear the ultimate
responsibility for Plaintiff Children’s safety, well-being, and permanency.24 Pursuant to
this responsibility, Defendants must, inter alia, (1) provide the children in state custody
with individualized service plans and written “reunification and/or permanency plans,” as
well as the necessary services to implement those plans;25 (2) select and place each
23 As Defendants correctly note, each Plaintiff Child’s service plan is reviewed every six months. R.I. Gen. Laws § 42-72-10. However, Defendants fail to point out that the Family Court does not conduct these reviews and is in no way involved with them. In fact, these reviews are conducted by an Administrative Review Officer, who is an employee of DCYF. 03 007 Code R.I. R. 0030. Far from being an impartial, independent review of DCYF’s compliance with its obligations to each Plaintiff Child, these reviews are in fact internal audits by the self-same agency. While the Family Court directs DCYF to submit an initial service plan “for care and treatment” within 30 days of the child’s placement into DCYF custody and is required to approve, modify, or remand that initial service plan, R.I. R. Juv. P. R. 17(c); 03 700 Code R.I. R. 0025(D)(5), there is no indication that any subsequent treatment plans are ever formally reviewed by the Family Court, R.I. R. Juv. P. R. 17(d) (requiring DCYF to review children’s service plans every six months and to report to the court, without requiring court ratification). 24 See R.I. Gen. Laws § 42-72-2; see generally DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989); Youngberg v. Romeo, 457 U.S. 307, 324 (1982); Estelle v. Gamble, 429 U.S. 97, 103 (1976); Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 79–80 (1st Cir. 2005); Germany v. Vance, 868 F.2d 9, 23 (1st Cir. 1989); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir.1993). 25 R.I. Gen. Laws § 42-72-10 (service plan), § 40-11-12.2(a) (requiring “written reunification and/or permanency plan”), § 42-72-4(b)(14) (requiring treatment, rehabilitation, and care); 03 007 Code R.I. R. 0025 (service plan).
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Plaintiff Child in a specific foster home, group home, or institution;26 (3) choose when, why, and how frequently to move a child from one placement to another; (4) hire caseworkers, develop a training curriculum, and ensure that caseworkers have manageable caseloads and resources;27 (5) recruit foster parents and train and license them to ensure that their homes are safe for the children placed there;28 (6) develop a full array of placements appropriate to the children’s individualized needs;29 and (7) investigate and act on allegations that a child in their custody has been abused or neglected.30 All of these functions are Defendants’ alone.
c. The Family Court Performs a Narrow, Proscribed Oversight Role
Adjudication of Plaintiff Children’s claims by this Court would not impinge on the role of the Family Court. While charging Defendants with responsibilities to the children in its care and custody, Rhode Island law also limits the oversight role of the Family Court. As noted by the Rhode Island Supreme Court, “the Family Court, as a court of statutory origin, has no more powers than those expressly conferred upon it by the Legislature.” Waldeck v. Piner, 488 A.2d 1218, 1220 (R.I. 1985). As such, the Family Court “cannot take action unless specific jurisdictional authority to act can be found in the Family Court Act.” Id. (citing Britt v. Britt, 383 A.2d 592, 594 (1978)). In most instances, the authority of the Rhode Island Family Court is limited to choosing
26 Regardless of what individual judges may do in practice (Defs.’ Mem. at 22–23), the law is clear that DCYF is responsible for selecting Plaintiff Children’s placements. See In re Doe, 390 A.2d 390, 396 (R.I. 1978) (“[T]he [family] court does not have the authority specifically to select a given facility”). 27 R.I. Gen. Laws § 42-72-5(b)(10). 28 R.I. Gen. Laws §§ 42-72-5, 42-72.1-1 29 R.I. Gen. Laws §§ 42-72-5(b)(3), 42-72-4(b)(14), 42-72-4(b)(17) 30 R.I. Gen. Laws §§ 11-9-5.1, 40-11-6, 40-11-7.
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between a few statutorily delineated options, based upon information supplied by Defendants. 31
Moreover, the Family Court can only order relief within the child welfare system
as maintained and operated by Defendants. For example, when Named Plaintiff David’s
behavior was regressing because of his inordinate length of stay in an institution, and
institution personnel warned that David needed to be moved before his behavior further deteriorated,32 the Family Court could not order that David be placed in a more
appropriate facility because DCYF had failed to develop an adequate array of group
homes and so none existed which could meet David’s needs. This is a problem created
exclusively by DCYF that the Family Court, in the context of David’s individual
permanency review, could not remedy. Nor could the Family Court order DCYF to hire
more caseworkers, impose caseload limits, or change its licensing standards in order to
assure the safety of each foster home after Named Plaintiff Danny was abused in an
31 For example, if the court finds that a child is abused or neglected, the court shall by decree do one of the following with respect to the child’s custody: place the child under DCYF supervision in his or her own home; award DCYF the “care, custody, and control of the child”; or appoint a guardian for the child. R.I. Gen. Laws § 40-11-12; see also § 14-1-32 (the court may place the child in the custody of a relative or other suitable person; place the child in the custody of DCYF; order the parent(s) to undertake a counseling program; or place the petition on file). Similarly, at the annual permanency hearings for each Plaintiff Child, the Family Court is required to order one of the following goals: reunification; continuation of long-term foster care; placement in an independent living facility; continuation of current foster care placement along with reunification efforts; or order DCYF to institute adoption proceedings. R.I. Gen. Laws § 40-11-12.1(e). (See also Exs. D-57, D-58 to Defs.’ Mot. to Dismiss (orders approving permanency plan).) The statute further dictates the factors the court must consider in making its order regarding a permanency goal. R.I. Gen. Laws § 40-11-12.1(d) (listing factors to consider: appropriateness of service plan; reunification services that have already been offered; efforts to plan for permanency where reunification unlikely; other efforts; and the child’s health and safety). 32 (Am. Compl. ¶ 61.)
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unsafe foster home.33 The Family Court, operating within its limited statutory mandate and with only limited information, is not ultimately responsible for Plaintiff Children. The quality of the Family Court’s options and the meaningfulness of the Family Court’s choice therefore depend almost exclusively on Defendants’ administration of the childwelfare program, i.e., the conduct that forms the basis for this lawsuit.
Ultimately, the Family Court has a very limited oversight role over but a few of the many decisions made by DCYF on behalf of each individual Plaintiff Child. The majority of the actions taken by DCYF are never reviewed by the Family Court at all, let alone ratified or pre-approved by it. Despite Defendants’ contentions to the contrary, it is evident that, as to the circumstances described in Plaintiffs’ Amended Complaint, DCYF is the entity acting or failing to act on behalf of each child, not the Family Court. As much as Defendants seek to implead the Family Court into this action, they cannot shirk their custodial duties by falsely laying responsibility for Plaintiff Children’s care and well-being on the Family Court.
d. Plaintiff Children Seek Relief That Will Operate Solely Against the Executive Defendants and Not Against the Family Court
Federal courts have routinely ordered system-wide relief against executive actors to reform child welfare agencies in actions brought by similarly situated plaintiff children. Several courts have successfully entered orders—in exactly the same types of cases—that caused absolutely no interference with Family Court decisions.34 Further,
33 (See Am. Compl. ¶ 91.) 34 For example, in a similar case concerning a class of children in foster care with open family court reviews, the Tenth Circuit preliminarily found that provisions of a child welfare consent decree governing training of social workers, the development of a computerized management information system, and qualifications of social workers did
cont.
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there are numerous examples in this Court where children in the custody of DCYF have
challenged aspects of their treatment while in custody.35 The plaintiff children in each of
those cases were subject to the same type of Family Court review proceedings that form
the basis for Defendants’ abstention argument here. As the relief sought in this case is
directed solely at the executive agency Defendants, and not against the Family Court,
abstention here would be inappropriate.36
Defendants repeatedly turn to 31 Foster Children v. Bush, 329 F.3d 1255 (11th
Cir. 2003) to support their abstention argument. However, unlike the instant lawsuit, the
plaintiffs in 31 Foster Children sought to “have the district court appoint a panel and give
it authority to implement a system wide plan to revamp and reform dependency
cont. not interfere with family court proceedings or implicate Younger. Joseph A. v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002). On remand, the district court found that those provisions and all consent decree provisions concerning case planning and review and adoption processes did not interfere with family court decisions or trigger Younger. Joseph A. v. N.M. Dep’t of Human Servs., No. 80-623 JC/DJS, slip op. at 7–23 (D.N.M. Jan. 16, 2003) (attached to Pls.’ Resp. as Ex. 6). Similar consent decrees around the country have been approved by federal courts. See, e.g., G.L. v. Stangler, 873 F. Supp. 252 (W.D. Mo. 1994). In addition, in the context of enforcing a consent decree against executive actors, this Court has previously noted that its “[federal court] review [of] the actions of DCYF, an agency of the state executive branch” does not implicate Younger concerns. Child Advocate v. Lindgren, 296 F. Supp. 2d at 192. 35 See, e.g., Inmates of Boys’ Training Sch. v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972) (challenging conditions of confinement); Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004) (challenging, inter alia, placement practices for children in the child welfare system); Office of the Child Advocate v. Pontarelli, No. 82-0091 P (D.R.I. 1982) (complaint attached as Ex. 6) (challenging DCYF’s and the Department of Elementary and Secondary Education’s failure to provide educational surrogates to children in the foster care system); John G. v. L’Heureux, No. 81-0035 (D.R.I. 1981) (complaint attached as Ex. 7) (challenging failure to provide appropriate education by excluding children from public school). 36 See Kercado-Meléndez v. Aponte-Roque, 829 F.2d 255, 261 (1st Cir. 1987) (declining to abstain where “the federal plaintiff claimed actual injury arising from action undertaken and completed by state actors”).
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proceedings in Florida, as well as the appointment of a permanent children’s advocate to oversee that plan.” Id. at 1279 (emphasis added). The Eleventh Circuit therefore found that the relief sought in that case would by its very nature “transfer[] responsibility for state child dependency proceedings from state to federal court and create[] a problematic ‘federal court oversight of state court operations.’” Child Advocate v. Lindgren, 296 F. Supp. 2d at 191–92 (quoting 31 Foster Children, 329 F.3d at 1279). In contrast, Plaintiff Children seek no relief that would require this Court —either directly or indirectly—to oversee, review, or reform any Family Court proceedings. What is more, the mere possibility that some of the relief sought by Plaintiff Children would interfere with Family Court proceedings is an insufficient basis for abstention and is premature.37
In sum, Defendants have made no showing that this federal lawsuit will interfere with any pending state court proceeding. Nor have they shown that this federal lawsuit will undermine notions of comity, nor that any relevant enforcement proceedings against these children exist concerning these children. As none of these threshold criteria are met, this Court cannot abstain pursuant to Younger from hearing the instant lawsuit, and no further analysis is necessary.38
37 See Olivia Y. v. Barbour, 351 F. Supp. 2d 543, 570 (S.D. Miss. 2004) (declining to abstain where “it [wa]s not apparent that all the relief plaintiffs might request necessarily would interfere with ongoing youth court proceedings”); Kenny A. v. Perdue, 218 F.R.D. 277, 286 n.5 (N.D. Ga. 2003) (court within the Eleventh Circuit noting that although “precise relief sought by plaintiffs remains somewhat unclear,” nonetheless “specific relief can be crafted that will not interfere with state court proceedings”). 38 Under First Circuit precedent, a court may not abstain under Younger if the threshold criteria are not met, and may not even engage in the Middlesex analysis. Defendants incorrectly contend that the Río Grande court went through the Middlesex analysis, (Defs.’ Reply at 31), but in fact, the First Circuit did not discuss any of the Middlesex prongs before determining that it would not abstain pursuant to Younger.
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B. Applying the Middlesex Test Requires the Court to Decline Younger Abstention
Even if this case did meet each of the three threshold criteria discussed above, this case would still not be appropriate for federal abstention because it does not meet the Middlesex. Under the Middlesex, abstention is appropriate where the injunctive relief sought interferes with (1) ongoing state court proceedings that (2) implicate an important state interest and (3) in which there is an adequate opportunity for the federal plaintiffs to raise their federal claims. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As with the threshold considerations above, all three prongs must be met to warrant abstention. Here, none of these prongs are met, and thus abstention is not warranted. (See also Pls.’ Resp. at 35–43.)
1. There Are No Ongoing Proceedings As explained more fully in Plaintiff Children’s Response to Defendants’ Motion to Dismiss, the Family Court review on behalf of each Plaintiff Child is not an “ongoing proceeding” within the meaning of Younger. (See Pls.’ Resp. at 35–36.)
2. There Is No Extremely Important State Interest at Stake Both the federal and Rhode Island governments have an interest in the administration of Rhode Island’s child welfare system and in protecting the foster children within that system whose care is funded to a large degree by federal funds and subject to federal statutory standards. Plaintiff Children do not deny the existence of any state interest in this lawsuit. However, abstention is only appropriate where there is an “extremely important” state interest. Middlesex, 457 U.S. at 434. Rhode Island’s admittedly important interest in the outcome of this action is however insufficient to meet the second prong of Middlesex. (See supra at 25; see also Pls.’ Resp. at 22–24, 37–38.)
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Additional caselaw also demonstrates that the state interest at issue here does not satisfy the Middlesex standard. The First Circuit has found a state’s interest to be “severely diminished” for purposes of Younger abstention where a federal plaintiff’s injury arose, as here, “from action undertaken and completed by state actors” and where the plaintiff was “not seeking to mount a broad, constitutional attack on the legitimacy of the state proceedings or their underlying statutory predicate.” Kercado-Meléndez, 829 F.2d at 261. Further, the First Circuit has also registered its “doubt” that a case could implicate “the type of important state interest contemplated in Middlesex” where the state court proceeding “is not a criminal or civil enforcement case, and it is not ‘uniquely in the furtherance of the state courts’ ability to perform their judicial functions.’” RiveraPuig v. García-Rosario, 983 F.2d 311, 319 n.13 (1st Cir. 1992) (quoting NOPSI, 491 U.S. at 368). Finally, state family law is simply not at issue in the instant lawsuit, which raises only federal constitutional and statutory causes of action.39 Since none of the factors that would indicate a heightened state interest are present here, the state interest in the subject matter of this lawsuit does not satisfy the second Middlesex prong.
3. The Family Court Proceedings Do Not Afford Plaintiff Children an Adequate Forum to Litigate Their Claims
The individual Family Court reviews of each Plaintiff Child’s permanency plan do not afford Plaintiff Children an adequate forum in which to litigate their claims alleging system-wide failings and seeking system-wide relief.40 As previously
39 Cf. Moore, 442 U.S. at 434 (abstaining where “family relations[,] a traditional area of state concern” were at issue); McLeod, 1999 WL 33117123 (D. Me. 1999) (abstaining from considering child custody challenge and noting that “[t]he question of child custody implicates an important, if not paramount, state interest”). 40 To the extent that the Court must engage in a factual inquiry in order to resolve the issues surrounding Younger abstention, Plaintiff Children submit Declarations from
cont.
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established, the Family Court is not equipped to order the types of remedies required to ameliorate the systemic problems that violate Plaintiff Children’s constitutional right to be free from harm while in state custody, such as high caseworker caseloads, poor caseworker training and supervision, and inadequate resources such as foster homes and mental health services. As noted above, the Family Court has only a narrow oversight role in the context of its permanency reviews and is limited in the relief it can provide to specific, statutorily enumerated orders. Supra section IV(A)(3)(c); see also R.I. Gen. Laws §§ 40-11-12.1. None of the orders the Family Court is empowered to enter, as dictated by Rhode Island statute, enable the Family Court to order any sort of the relief required to address the constitutional violations and the causes alleged here.41 For example, there would simply be no way in the context of an individual permanency review for the Family Court to impose caseload limits on DCYF caseworkers, order DCYF to hire more caseworkers, or order DCYF to develop a broader range of appropriate foster placements.
Additionally, in the context of the Family Court reviews that Defendants contend are the appropriate forum for Plaintiff Children’s claims, the limited evidence presented to the Family Court during these proceedings is largely under the exclusive control of
cont. Lenette Azzi-Lessing, Patricia Corbett, and Jametta Alston (attached as Exs. 8, 4, and 5, respectively). Should the Court require further findings to resolve any factual questions, Plaintiff Children would request discovery on the adequacy of the individual Family Court proceedings to address the issues raised in this lawsuit. 41 In the opinion of a declarant who is intimately familiar with the Family Court’s reviews, “the Family Court individual reviews do not afford the Family Court an opportunity to address systemic failings, and the Family Court is not equipped to remedy the serious systemic weaknesses that . . . exist in the Rhode Island child welfare system.” (Corbett Decl., Ex. 4 at ¶ 16, 17; see also Azzi-Lessing Decl., Ex. 8 at ¶ 18; Alston Decl., Ex. 5 at ¶¶ 11–12.)
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DCYF. Also, caseworkers from provider agencies often are precluded from offering any testimony at these reviews, despite the fact that they generally have the most day-to-day contact with Plaintiff Children. (Corbett Decl., Ex. 4 at ¶ 11.)
Furthermore, Family Court reviews are fairly cursory, ranging in length from 5 to 20 minutes each. (Corbett Decl., Ex. 4 at ¶ 10; Alston Decl. Ex. 5 at ¶ 7.) In fact, the Rhode Island Supreme Court has expressed “real concern about the caseloads facing the justices of the Family Court.” Cardinale v. Cardinale, 889 A.2d 210, 215 n.6 (R.I. 2006). (See also Alston Decl., Ex. 5 at ¶ 9 (noting typical dockets of 60 cases per justice).) In addition, the attorneys who represent Plaintiff Children during these reviews each carry an average caseload of 400 children.42 Moreover, “children in foster care custody frequently do not meet their guardians ad litem (GAL) or CASA attorneys.” (Corbett Decl., Ex. 4 at ¶ 8.) The children may only meet their legal representatives at their Family Court hearings, in the event that the children are brought by DCYF to attend at all. (Id.) At least one of the Named Plaintiffs had, at the time of filing, never met his guardian ad litem, who had represented him for years. (Alston Decl. (Oct. 19, 2007) at ¶ 8.) 43 Additionally, it appears that even whether to appoint an attorney to represent child is “all in the court’s discretion.” See R.I. Gen. Laws § 40-11-14; but cf. R.I. Gen. Laws § 40-11-7.1(b)(3). Lastly, the Family Court cannot hear class action lawsuits.44 In order to
42 R.I. Family Court - Overview, http://www.courts.state.ri.us/family/overview.htm. 43 It is ironic that Defendants challenge the adequacy of Next Friends based upon their limited interaction with Plaintiff Children while in the same brief calling for the extraordinary measure of Younger abstention in favor of state Family Court proceedings in which the children have little to no contact with their guardians ad litem and CASA attorneys. 44 (See Pls.’ Resp. at 40 n.45.) This would preclude the Family Court from hearing the class claims of this putative class action. See also Kenny A., 218 F.R.D. at 287 (finding
cont.
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abstain pursuant to Younger, this Court must find that the Family Court can and should
deal with the matters Plaintiff Children have alleged in this lawsuit as part of each of the
3,000 Plaintiff Children’s existing individual Family Court reviews. However, it is clear
that the Family Court reviews are not a forum in which Plaintiff Children’s claims of
constitutional violations can be heard, addressed, or remedied, and the prospect of raising
3,000 individual claims of constitutional violations in the Family Court is simply
untenable. These Family Court reviews do not satisfy the third prong of Middlesex.
In conclusion, Plaintiff Children have no state court forum in which they have
ongoing proceedings and in which they can raise their federal claims, and they are not required to initiate a new state court proceeding in order to raise their federal claims.45
Further, the “presence of a federal issue” in Plaintiff Children’s case is a “major consideration weighing against [abstention].”46 The doctrine of Younger abstention does
not require this Court to decline its jurisdiction over this matter. In fact, application of
Younger analysis here should compel this Court to retain its jurisdiction in this case.
V. THE ROOKER-FELDMAN DOCTRINE DOES NOT APPLY As Defendants concede, “the Rooker-Feldman doctrine . . . applies only in the
‘limited circumstances’ where ‘the losing party in state court filed suit in federal court
cont. juvenile court proceedings inadequate where court could not order class-based relief); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn. 2000) (same). 45 See Brooklyn Inst. of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184, 195 (E.D.N.Y. 1999) (“The mere fact that a state court of general jurisdiction can entertain any claim between two parties properly before it is too insubstantial a basis for compelling a party which wishes to bring federal constitutional claims in federal court to present those claims to a state court instead. There is little difference between what the defendants seek here and compelling a plaintiff to bring a federal civil rights claim in state court in the first instance simply because a state forum is always available to hear it.”). 46 Cruz v. Melecio, 204 F.3d 14, 25 (1st Cir. 2000).
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after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.’” Federación de Maestros de P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 23–24 (1st Cir. 2005). However, Defendants fail to acknowledge that, even if Plaintiff Children were considered “state court losers” in the context of any decisions made by the Family Court, no state court judgments exist from which Plaintiff Children appeal. Any decisions that the Family Court made in the context of the children’s individual permanency reviews do not rise to the level of a judgment, nor do Plaintiff Children challenge any of those Family Court decisions. Rather, Plaintiff Children challenge the failure of the executive actors to comply with their constitutionally and statutorily mandated obligations to Plaintiff Children. These federal constitutional and statutory claims that Plaintiff Children raise in this federal lawsuit have never been raised or adjudicated in any state court proceeding. Accordingly, Rooker-Feldman has no application here.47 VI. PLAINTIFF CHILDREN ARE PROPERLY REPRESENTED BY THE
CHILD ADVOCATE AND FOUR OTHER COUNSEL OF RECORD IN THIS FEDERAL SUIT In a further attempt to deprive Plaintiff Children of access to this Court to adjudicate their federal claims, Defendants assert that those claims must be dismissed because the Child Advocate is somehow prohibited from pursing litigation except in the Rhode Island Family Court. Defendants’ argument has no bearing on Defendants’ Motion to Dismiss and fails for three reasons. First, the Child Advocate is co-counsel in this action, not a party. Any alleged incapacity on the part of the Child Advocate to 47 Defendants further fail to recognize that this federal lawsuit simply cannot violate both the doctrines of Younger and Rooker-Feldman. Either there is an ongoing state court proceeding, which might trigger a Younger analysis, or the state court proceeding has terminated in a judgment, which might trigger a Rooker-Feldman analysis.
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represent the Named Plaintiffs in this forum would not extinguish the children’s rights in this case as they are properly represented by four other counsel of record. Second, regardless of whether Rhode Island law would require the Child Advocate to bring suit in Family Court, no such law can deprive Plaintiff Children of their right of access to the federal court to press their federal claims; a federal court’s jurisdiction is defined solely by federal law. Third, even if this Court were to reach the issue by analyzing the state statutes in question—which it need not do—those statutes address the executive, administrative function of the Office of the Child Advocate and in no way limit the Child Advocate’s choice of forum in which to prosecute Plaintiff Children’s federal claims.
A. Plaintiff Children Are Represented by a Team of Attorneys and May Proceed with Their Federal Claims Before This Court Regardless of the Child Advocate’s Statutory Mandate
Defendants’ argument, that Plaintiff Children’s section 1983 claims should be dismissed because the Child Advocate allegedly does not have the statutory authority to bring suit in federal court, rests on the mistaken premise that Plaintiff Children’s claims fail absent the Child Advocate’s participation. Aside from distorting Rhode Island statutes, this argument ignores the plain fact that the Child Advocate is co-counsel and that Plaintiff Children are also represented by a team of experienced and competent attorneys, consisting of John Dineen, a Rhode Island civil rights practitioner, who, like Ms. Alston, is local counsel; Vernon Winters, a partner with the international firm of Weil, Gotshal & Manges LLP; and Marcia Lowry and Susan Lambiase, Director and Associate Director, respectively, of Children’s Rights, a child advocacy organization.48
48 The qualifications of the attorneys representing Plaintiff Children in this suit are more fully set forth in Plaintiffs’ Motion for Class Certification, filed on June 28, 2007. Mr. Winters, Ms. Lowry, and Ms. Lambiase all appear in this case pro hac vice.
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There has been no suggestion, nor is there any ground upon which to find, that these other co-counsel cannot prosecute Plaintiff Children’s claims. Therefore, assuming arguendo that the Child Advocate were not counsel, Plaintiff Children would nonetheless be properly before this Court through the remaining team of four attorneys who appear on their behalf.49
Defendants’ argument for dismissal on this ground also fails because the disqualification of a litigant’s attorney does not defeat the litigant’s claim. See Gough v. Perkowski, 694 F.2d 1140, 1142 (9th Cir. 1982) (“After disqualification, counsel may not proceed with the case. The litigation continues on with new counsel. . . . The issue whether counsel should be disqualified is completely separate from the merits of the suit.”). Even if the Child Advocate were deemed to be acting outside of her statutory mandate, any potential remedy—including the Child Advocate’s removal as cocounsel—would not alter the legal viability of Plaintiffs’ claims. In any event Plaintiffs’ claims would stand.
B. Rhode Island State Statutes Cannot Defeat This Federal Court’s Subject Matter Jurisdiction Over Plaintiff Children’s Federal Claims
While a plain reading of the statutes defining the authority of the Office of the Child Advocate readily defeats Defendants’ contention that the Child Advocate is prohibited from bringing suit in federal court, this Court need not even reach that issue of state law. It is well established that “[f]ederal Courts are not bound by a statute requiring suit to be brought in a particular state court.” First Nat’l City Bank v. Gonzalez & Co. 49 It would be reversible error to disqualify Plaintiffs’ entire legal team based upon the alleged incapacity of a single member of the team. See Essex Chem. Corp. v. Hartford Accident & Indem. Co., 993 F. Supp. 241, 246–52 (D.N.J. 1998) (collecting cases across multiple federal jurisdictions holding that existence of co-counsel relationship alone does not warrant across-the-board disqualification).
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Sucr. Corp., 308 F. Supp. 596 (D.P.R. 1970). This Court’s subject matter jurisdiction is defined solely by federal law and cannot be expanded or diminished by state statute. See Grand Bahama Petroleum Co., Ltd. v. Asiatic Petroleum Corp., 550 F.2d 1320, 1325 (2d Cir. 1977) (“In determining its own jurisdiction, a District Court of the United States must look to the sources of its power and not to acts of states which have no power to enlarge or to contract the federal jurisdiction.” (quoting Markham v. City of Newport News, 292 F.2d 711, 713 (4th Cir. 1961))); Poitra v. Demarrias, 502 F.2d 23, 26 (8th Cir. 1974) (recognizing that state law cannot enlarge or restrict the jurisdiction of federal courts).
The requirements of federal court jurisdiction are clearly met as Plaintiff Children assert that Defendants’ actions in administering Rhode Island’s child welfare system violate their federal statutory and constitutional rights. (Am. Compl. at ¶¶ 219–38.) Whether state law would have required that those claims be brought in Family Court rather than some other state court is simply irrelevant to this case, because Plaintiff Children chose not to bring their lawsuit in state court. See Marshall v. Marshall, 547 U.S. 293, 314 (2006) (state legislation granting state court exclusive jurisdiction may not divest a federal court of jurisdiction).50
Defendants assert that this lawsuit “is an attempt to make an end run around the Family Court” which poses a separation of powers “quandary” by “usurping” the judicial
50 As to the concern regarding the potential rigors that federal litigation may pose to the Named Plaintiffs, Defendants offer no explanation as to why a suit in federal court would be any more difficult for the Named Plaintiffs than if their claims were brought seriatim in state Family Court proceedings. In fact, the Child Advocate’s choice to bring a class action, as opposed to hundreds if not thousands of individual suits, decreases these children’s exposure to the challenges posed by litigation.
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branch’s authority to adjudicate issues concerning Plaintiff Children who fall within the
Family Court’s exclusive jurisdiction. (Defs.’ Mem. at 17.) Yet every time a federal
court asserts jurisdiction over a claim it may be said to “usurp” the authority of some
state court to adjudicate that same claim. Defendants never formulate a coherent
separation of powers argument; their concern is comity.51 There is simply no
overreaching by one arm of state government into the exclusive domain of another that
would give rise to a separation of powers concern.52 Indeed, the only separation of
powers issue that could be said to exist in this case concerns Defendants’ suggestion that
the Family Court has the authority to determine whether and where the Child Advocate
may bring suit, when the Rhode Island General Assembly has explicitly delegated such
authority solely to the executive branch Office of the Child Advocate.53
51 Any tension created by the fact that in exercising its jurisdiction, a federal court necessarily deprives a state court of its jurisdiction to hear a case, must properly be understood not as a separation of powers issue, but one of comity and federalism, which the Supreme Court has fashioned the doctrine of abstention to address. See Gross v. Weingarten, 217 F.3d 208, 220, 222 (4th Cir. 2000) (recognizing that doctrine of abstention is “the safety valve” developed to address comity concerns that arise when federal court assumes jurisdiction in a suit over which a state court has exclusive jurisdiction). See also supra Section IV. 52 For example, while Rhode Island statute requires that complaints of housing code infractions in Providence be brought in a specific housing court, see R.I. Gen Laws § 4524.2-7, the First Circuit has made clear that allegations that such infractions give rise to a constitutional violation “indisputably fall[] within the [federal] court’s subject matter jurisdiction.” Durrett v. Hous. Auth. of Providence, 896 F.2d 600, 604 (1st Cir. 1990). The choice to challenge unlawful conditions of foster care through the more expeditious and less onerous vehicle of a single class action, rather than through innumerable individual Family Court hearings, is no different from the decision to challenge unlawful conditions in a housing project though a class action, rather than through multiple individual housing code violation complaints. 53 See, e.g., Mottola v. Cirello, 789 A.2d 421, 425 (R.I. 2002) (“[I]t is not the province of this Court, or the Superior Court, to dictate how the Attorney General elects to carry out the statutory functions of his office”), cf. Catalina Inc. v. P. Zwetchkenbaum & Sons, Inc., 267 A.2d 702, 705 (R.I. 1970) (holding that legislature has power to vest private
cont.
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C. There Is No State Statutory Requirement That the Child Advocate Pursue Plaintiffs’ Claims Only in Family Court
Even if a state law limiting the forum in which a state court action could be brought were relevant to the justiciability of Plaintiff Children’s claims in this federal court, which it is not, Rhode Island statutes regarding the authority of the Child Advocate contain none of the jurisdictional limits that Defendants assert. It is a “long-established tenet of statutory construction that ‘when the language of a statute is unambiguous and expresses a clear and sensible meaning, no room for statutory construction or extension exists.’” Rison v. Air Filter Sys., Inc., 707 A.2d 675, 681 (R.I. 1998) (quoting In re Sabetta, 661 A.2d 80, 83 (R.I. 1995)). This Court must “give the words of the statute their plain and obvious meaning.” Rison, 707 A.2d at 681; see also Providence & Worcester R.R. Co. v. Pine, 729 A.2d 202, 208 (R.I. 1999).
Pursuant to R.I. Gen. Law § 42-73-7(6), the Child Advocate is mandated to “[t]ake all possible action including . . . formal legal action to secure and ensure the legal, civil, and special rights of children subject to the provisions of § 42-73-9.1 and chapter 72 of this title.” The plain reading of this provision, along with § 42-73-9.1 and all of Chapter 72, reveals no limitation on the jurisdiction in which the Child Advocate may carry out her mandate to pursue the legal claims of children in foster care.
Defendants point to 42-73-9.1(a), which provides: In addition to the powers set forth in § 42-73-9, the child advocate, or his or her designee, shall have the power to commence in the superior court a civil action against the state pursuant to the provisions of chapter 25 of title 12 on behalf of any child the custody of whom has been assigned to cont. persons with power to bring actions to enjoin violations of state statute and that it is not within province of court to question that authority).
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any institution or agency under the control of the department of children, youth, and families or other private agency or provided in § 14-1-34.
(emphasis added). However, this provision simply broadens the Child Advocate’s
authority by including the additional power to bring a claim regarding criminal
injuries suffered by children under the Rhode Island Criminal Injuries
Compensation Act, R.I. Gen. Laws §§12-25-1 et seq. As originally enacted, that
statute specifically required that claims brought under its provisions be asserted in the Superior Court.54 This section provides the Child Advocate with another
cause of action in her representation of children in DCYF custody, but does
nothing to limit the authority of the Child Advocate to undertake her mandate of
pursuing the civil rights of foster children in the forum she deems most appropriate. 55 While Chapter 72 of Title 42 of Rhode Island’s General Laws
discusses the role of the Family Court, nothing in that chapter dictates or even
suggests that the Child Advocate may prosecute federal claims on behalf of children only in Family Court proceedings.56
54 The Criminal Injuries Act has been superseded by the Criminal Injuries Compensation Act of 1996 which established the Rhode Island Office of the General Treasurer, rather than the Superior Court, as the entity responsible for awarding compensation for criminal injuries. See R.I. Gen Laws §§ 12-25-16 et seq. 55 Defendants challenge the Child Advocate’s determination not to intervene in the proceeding in Family Court on behalf of former Named Plaintiffs Briana, Alexis, and Clare. (Defs.’ Reply at 53.) However, at the time Defendants invited the Child Advocate to participate in those reviews, as Defendants are aware, the Child Advocate had already determined that the individual Family Court reviews are an inappropriate and inadequate forum to remedy DCYF failures, and had already brought this suit in federal court. 56 In re R.J.P., 445 A.2d 286 (R.I. 1982), cited by Defendants, is similarly unhelpful. The court in there held that the Child Advocate’s authority included filing a petition with the Family Court alleging that a child is abused or neglected, despite the absence of any specific language granting such authority in either the statute establishing the Child Advocate’s Office or in any other Rhode Island statute. Id. at 288. This has no bearing
cont.
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Further, there is no basis for Defendants’ suggestion that the Child Advocate must advise the Family Court or seek Family Court approval before pursuing Plaintiff Children’s federal claims in federal court. (See Defs.’ Mem. at 11–12.) In exercising her statutory authority, the Child Advocate is wholly independent of any other entity, including DCYF and the Family Court. R.I. Gen. Laws § 42-73-5; see also In re R.J.P., 445 A.2d 286, 287 (R.I. 1982) (“[T]he Legislature has specifically stated that the Child Advocate in performing his duties, one of which is the bringing of formal legal action on behalf of children, must act independent of DC[Y]F.”). To require the Child Advocate to seek permission of the Family Court would be inappropriate and would sacrifice the independence given to her by the Rhode Island Legislature.
It is clear that the legislature did not intend to bar the Child Advocate from bringing federal actions, and this Court should decline Defendants’ invitation to rewrite Rhode Island law to reach a contrary conclusion. Such a bar would run counter to not only the intent of the legislature, but also to the past two and half decades of judicial precedent in which the Child Advocate has successfully brought federal actions against state entities, including DCYF, on behalf of Rhode Island children in foster care. See, e.g., Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (federal class action brought by Child Advocate on behalf of children in DCYF custody); Child Advocate v. Pontarelli, No. 82-0091 P; John G., No. 81-0035 (D.R.I. 1981).
It is unsurprising that Defendants would prefer for the Child Advocate to challenge Defendants’ unlawful conduct on an inefficient, piecemeal basis in each child’s
cont. on the Child Advocate’s authority to take actions other than filing abuse or neglect petitions, which are exclusively filed in Family Court.
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individual Family Court proceedings, where the Family Court lacks the authority to order effective system-wide remedial relief. Yet there is no legal basis to preclude the Child Advocate from proceeding on behalf of the Plaintiff Children in this federal forum. VII. CONCLUSION
The Supreme Court has famously cautioned that “‘[i]t is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’” Marshall, 547 U.S. at 298–99 (quoting Cohens v. Virginia, 19 U.S. 264 (1821)). Plaintiff Children properly appear before this Court to vindicate their well-established federal right to protection and services from the governmental agency that has assumed complete control and custody over their young lives. This Court should reject Defendants’ unjustified attempt to bar the doors of the federal courthouse to Plaintiff Children and should deny Defendants’ motion in all respects.
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Dated: February 29, 2008

Respectfully submitted,
/s/ Susan Lambiase_____________________ MARCIA ROBINSON LOWRY (Bar No. 1187053 (N.Y.); admitted pro hac vice) SUSAN LAMBIASE (Bar No. 2099489 (N.Y.); admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org, slambiase@childrensrights.org
/s/ Jametta O. Alston____________________ JAMETTA O. ALSTON (Bar No. 3909) CHILD ADVOCATE OF THE STATE OF RHODE ISLAND John O. Pastore Center 57 Howard Avenue, Fourth Floor Cranston, RI 02920 Phone: (401) 222-1690 Facsimile: (401) 222-6652 Email: jalston@doa.state.ri.us
JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
VERNON M. WINTERS (Bar No. 130128 (Cal.); admitted pro hac vice) WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3005 Facsimile: (650) 802-3100 Email: vernon.winters@weil.com

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CERTIFICATION

I hereby certify that on February 29, 2008, I electronically mailed the foregoing document to the attorneys of record listed below:

Brenda D. Baum, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov

James R. Lee, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2314 Fax: (401) 222-2995 jlee@riag.ri.gov

Kevin Aucoin, Esq. Executive Counsel R.I. Department of Children, Youth & Families 101 Friendship Street Providence, RI 02903-3716 Tel: (401) 528-3579 Fax: (401) 525-3566 Kevin.Aucoin@dcyf.ri.gov

Jane Morgan, Esq. Assistant Director of Legal Services R.I. Department of Elderly Affairs Benjamin Rush Building 35 Howard Avenue Cranston, RI 02920 Tel: (401) 462-0524 Fax: (401) 462-0503 jmorgan@dea.state.ri.us

/s/ Susan Lambiase_____________________ SUSAN LAMBIASE (Bar No. 2099489 (N.Y.); admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: slambiase@childrensrights.org

50

 
 Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 1 of 81 PageID #: 2399

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

CASSIE M., by Next Friend Kymberli Irons; )

ALEX and JARED C., by Next Friend

)

Gregory C. Elliott; TERRENCE T., by Next )

Friend Gregory C. Elliott; TRACY L., by )

Next Friend Kymberli Irons; DAVID T., by )

Next Friend Mary Melvin; and DANNY B., )

by Next Friend Gregory C. Elliott; for

)

themselves and those similarly situated*, )

)

Plaintiffs,

)

)

v.

)

)

LINCOLN D. CHAFEE, in his official

)

capacity as Governor of the State of Rhode )

Island; STEVEN M. COSTANTINO, in his )

official capacity as Secretary of the

)

Executive Office of Health & Human

)

Services; and JANICE E. DEFRANCES, in )

her official capacity as Director of the

)

Department of Children, Youth & Families, )

)

Defendants.

)

Class Action Civil Action No. 1:07-cv-00241-ML-LDA

SECOND AMENDED COMPLAINT FOR INJ UNCTIVE AND DECLARATORY RELIEF
AND REQUEST FOR CLASS ACTION

* pseudonyms are used for all minor named plaintiffs.

Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 2 of 81 PageID #: 2400
TABLE OF CONTENTS Page No.
I. Introduction..........................................................................................................................4 II. Jurisdiction and Venue.........................................................................................................7 III. Class Action Allegations......................................................................................................7 IV. The Parties .........................................................................................................................10
A. The Named Plaintiffs .............................................................................................10 B. The Defendants ......................................................................................................34 V. The Rhode Island Child Welfare System...........................................................................35 VI. Defendants Have Long Known That Rhode Island’s Child Welfare System Cannot Fulfill Its Duties to Plaintiff Children Without Urgent, Systemic Reform ...........37 A. The 2003 System of Care Task Force Report Concluded that the Child
Welfare System Was Harming Children and That Systemic Reform Was Necessary ...............................................................................................................37 B. The 2004 Federal Child Welfare Review Identified Widespread Problems in Rhode Island’s Child Welfare System...............................................................40 C. The 2005 T.J. Wright Child Fatality Report Called for Systemic Reform ............41 D. The Child Advocate’s 2006 Report Found Little Progress Had Been Made.........42 E. A 2006 Federal Regional Review Revealed Little to No Progress in Improving the Child Welfare System ....................................................................42 F. The Rhode Island Senate Has Recognized the Child Welfare System’s Chronic Failings.....................................................................................................43 VII. Current Systemic Child Welfare Failings and the Resulting Harm to Children................44 A. Plaintiff Children Are Abused and Neglected in Foster Care................................44 B. Defendants Place Plaintiff Children in Homes and Institutions that Do Not Meet Their Needs and That Do Not Comply With Reasonable Professional Standards ................................................................................................................46
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1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements ...............................................................46
2. Defendants Unnecessarily Place Children in Shelters and Institutions, Where They Stay for Too Long .............................................47
3. Defendants Send Children in Foster Care Far from Their Homes and Communities .......................................................................................49
4. Because Children Are Placed in Inappropriate Homes and Institutions, Their Placements Frequently Disrupt, and Children Deteriorate as They Get Moved from Place to Place.................................51
5. Defendants Separate Siblings in Foster Care Because They Have Failed to Develop an Adequate Placement Array......................................53
C. Defendants Fail in Their Duty to Meet Plaintiff Children’s Service Needs ..........54
1. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Assessments or Case Plans.................................54
2. Defendants Violate Plaintiff Children’s Rights to Timely and Safe Reunification with Their Families When Reunification Is Appropriate ................................................................................................55
3. Defendants Violate Plaintiff Children’s Rights to Permanency by Pursuing Reunification with Parents When Not Appropriate....................57
4. Defendants Fail to Timely Place Children Who Cannot Return Home with Permanent Adoptive Families, Allowing Them Instead to Languish in Foster Care .........................................................................59
5. Defendants Violate Plaintiff Children’s Health Care Rights .....................61
D. Defendants’ Mismanagement of Rhode Island’s Foster Care System Harms Plaintiff Children........................................................................................64
1. Defendants Assign Excessive Caseloads to Caseworkers, Making It Impossible for the Caseworkers to Ensure That Children Are Safe and Having Their Needs Met.............................................................64
2. Caseworkers Fail to Make Required Child Visits......................................67
3. The DCYF Licensing Unit Fails Applicable Standards, Resulting in a Chronic Shortage of Licensed Placements and Providers ..................69
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Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 4 of 81 PageID #: 2402 E. Defendants’ Fiscal Mismanagement of the Child Welfare System Harms Children..................................................................................................................71 1. Defendants Forfeit Available Federal Funds .............................................72 2. Defendants Waste Limited Funds on Harmful, Costly Institutional Placements .................................................................................................72 3. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents ........................................................................73
VIII. Causes of Action ................................................................................................................74 IX. Prayer for Relief.................................................................................................................78
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I. Introduction 1. On October 31, 2004, a three-year-old Rhode Island boy named T.J. Wright
was beaten to death by his foster parents. The State of Rhode Island’s Department of Children, Youth and Families (DCYF), the agency responsible for protecting abused and neglected Rhode Island Children, had removed T.J. from his parents’ care and placed him with the foster parents who killed him: a twenty-year-old maternal aunt and her live-in boyfriend who already had two young children. DCYF placed T.J. and his two brothers with these young parents without screening or licensing them. There were now five children living in the home, all under the age of nine. Both foster parents had histories of drug abuse and involvement in drug trafficking. Both were unemployed.
2. T.J. Wright’s death was all the more tragic because DCYF could easily have prevented it by taking simple steps, mandated under DCYF’s own policies, to ensure T.J.’s safety before placing him in their care, such as screening the prospective foster parents for criminal and DCYF histories and checking their references. DCYF had a duty to protect T.J. Wright. Instead, it placed him with the people who killed him.
3. The T.J. Wright homicide put DCYF in the spotlight, revealing serious systemic failures. An official investigation into his death produced a series of urgent recommendations for long-overdue reform. Nevertheless, now nearly three years since T.J.’s death, DCYF is still unable to provide basic safety for the abused and neglected children whom it removes from home and takes into its legal custody for their own protection.
4. This civil rights class action is brought on behalf of those vulnerable children. Plaintiffs seek declaratory and injunctive relief to remedy Defendants’ violations of
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their legal rights and to prevent Defendants, by their actions and inactions, from continuing to
harm the abused and neglected children who rely on Defendants for care and protection.
5. DCYF is plagued by fundamental, systemic failings of great depth and
scope. For example:
• DCYF fails to protect children from abuse and neglect in foster care:
o In five of the six years from 2000 through 2005, Rhode Island was the worst state in the nation in its rate of maltreatment or neglect occurring to children in State foster care.1
o For years, children under the protection of the state in foster care custody in Rhode Island have suffered abuse or neglect at a higher rate than have children living in the state’s general population.
• DCYF fails to assess and address children’s needs and fails to place them with families where their needs will be met and where they will be safe: In all aspects of case planning and management, DCYF fails to exercise reasonable professional judgment. DCYF fails to identify children’s safety, medical, mental health, education and permanency needs and fails to develop and implement plans to ensure that children and families receive necessary services to meet those needs. DCYF does not develop case plans or choose placements for children on the basis of their individual situation. DCYF regularly places children in settings that are ill-suited to their individual needs. As a result, these placements predictably disrupt, and DCYF shuffles children unnecessarily from one placement to another. With each successive inappropriate placement, children become increasingly damaged.
• DCYF returns children to their parents without making a reasoned determination that the children will be safe and without identifying or providing services needed to ensure the children’s safety: More than 15 percent of the children entering Rhode Island foster care in the first quarter of 2006 had been in foster care less than a year earlier. This means that these children had been returned by the State to their parents, only to be abused or neglected again and returned to State foster care.
• DCYF fails to engage in the planning necessary for children in its care to achieve permanency, causing many children to languish in foster care for years: DCYF fails to timely plan for adoption when children cannot be safely returned home. DCYF frequently places children in institutions and with families that will not adopt. For children who cannot be reunified with their
1 Data on 2006 are not yet available.
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families, this effectively keeps children languishing in care with no move towards finding a permanent home.
• DCYF fails to maintain an adequate number of foster homes, instead placing and leaving children in institutions simply because nothing else is available: Federal law and reasonable professional standards require that children in foster care be placed in the least restrictive, most family-like setting suited to their needs. In Rhode Island, however, 35 percent to 40 percent of the children in State foster care custody live in expensive emergency shelters, group homes, and other institutions, many simply because Rhode Island has not developed more appropriate and less harmful placements for them. The rate at which Rhode Island institutionalizes children in its foster care custody is twice the national average of 19 percent. In the most recent year for which data are available, 2004, Defendants placed 18.9 percent of children in foster care under 12 years old in group homes and institutions; this is more than twice the national median of 8.3 percent in 2003, the last period for which data are available. Such placements are harmful, especially to young children, except in very rare cases.
• DCYF assigns excessive caseloads to its caseworkers, making it impossible for them to visit the children in DCYF’s custody: DCYF caseworkers labor under caseloads that far exceed reasonable professional standards. As a result, caseworkers make only a fraction of required visits with the children assigned to them. As of June 2007, only 39 percent of all Plaintiff Children had received a face-to-face visit with their caseworker within the last 30 days. Without caseworkers visiting children on a regular basis, it is impossible for DCYF to ensure that children in foster care are safe and are having their basic needs met.
• DCYF places children in unlicensed homes: As of May 2007, there were 233 children in DCYF’s legal custody who were living in unlicensed foster homes. DCYF did not take reasonably necessary steps to ensure that these homes were safe and appropriate placements before leaving children in them.
6. These harms to children are the direct result of a child welfare system that
has long been poorly managed, that misdirects funds, and that has failed to develop necessary
and appropriate placements and services for children.
7. This civil rights class action seeks declaratory and injunctive relief to
compel Defendants—the Governor of the State of Rhode Island, the Secretary of the Executive
Office of Health and Human Services, and the Director of the Department of Children, Youth
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and Families—to meet their legal obligations to care for and protect Rhode Island’s abused and neglected children in state custody by reforming the State’s dysfunctional child welfare system. II. Jurisdiction and Venue
8. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution, federal statutes, and federal common law. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
9. Venue is proper here pursuant to 28 U.S.C. § 1391(b). The claims arise in this district. III. Class Action Allegations
10. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
11. The class is defined as “all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect” (“Plaintiff Children”). As of January 2007, approximately 3,000 children were in the legal custody of DCYF for foster care services due to reported or substantiated allegations of abuse or neglect. The Class is sufficiently numerous to make individual joinder impracticable.
12. The questions of law and fact raised by the Named Plaintiffs’ claims are common to and typical of those of the Plaintiff Children they seek to represent. Named Plaintiffs are all children in Defendants’ legal custody who rely on Defendants for their safety and wellbeing. They are at risk of harm by the systemic and legal deficiencies of Rhode Island’s child welfare system.
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13. Questions of fact common to the Class include:
a. Whether Defendants fail to provide Plaintiff Children with safe, appropriate, and stable foster care placements, causing significant harm to their health and well-being;
b. Whether Defendants fail to prevent the abuse or neglect of Plaintiff Children while in Defendants’ custody, causing significant harm to their health and well-being;
c. Whether Defendants fail to place Plaintiff Children in the least restrictive and most family-like settings suited to their needs, including by unnecessarily institutionalizing them, causing significant harm to their health and well-being;
d. Whether Defendants fail to provide Plaintiff Children with legally required services necessary to keep them safe and properly cared for, and to prevent them from deteriorating physically, psychologically, or otherwise while in custody, as required by law and reasonable professional judgment, causing significant harm to their health and well-being;
e. Whether Defendants unsafely return Plaintiff Children to caretakers who abuse or neglect them again, causing significant harm to their health and well-being;
f. Whether Defendants unnecessarily move Plaintiff Children from placement to placement, causing significant harm to their health and well-being;
g. Whether Defendants fail to provide Plaintiff Children and their families with reasonable decision-making as well as timely services necessary to ensure the safe and successful reunification of children with their families when appropriate, causing significant harm to their health and well-being;
h. Whether Defendants fail to provide Plaintiff Children with timely and reasonable decision-making as well as services necessary to ensure that when Plaintiff Children cannot be reunited with their families safely, they are promptly freed for adoption and placed in permanent homes, causing significant harm to their health and well-being; and
i. Whether Defendants fail to provide Plaintiff Children with the supports necessary to maintain family relationships where appropriate, including placing siblings together as well as
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providing parent and sibling visits, causing significant harm to their health and well-being.
14. Questions of law common to the Class include:
a. Whether Defendants’ actions and inactions violate Plaintiff Children’s substantive due process rights to be free from harm while in state custody, guaranteed by the Fourteenth Amendment to the United States Constitution;
b. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to family integrity, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution; and
c. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to timely case plans containing mandated elements and to adequate foster care maintenance payments, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations.
15. Named Plaintiffs will fairly and adequately protect the interests of the class
they seek to represent.
16. Named Plaintiffs and Plaintiff Children are represented by:
a. Jametta O. Alston, a licensed Rhode Island attorney and the former Child Advocate of the State of Rhode Island, a public official empowered to bring legal action to protect abused and neglected children in DCYF’s care;
b. John Dineen, a licensed Rhode Island attorney with substantial experience litigating civil rights matters in the federal courts;
c. Attorneys employed by Children’s Rights, a nonprofit legal organization whose attorneys have substantial experience and expertise in child welfare class actions nationally; and
d. Weil, Gotshal & Manges LLP, a global private law firm with extensive experience in complex civil litigation including class action litigation and a non-litigation office in Providence.
17. The attorneys and entities listed above have investigated all claims in this
action and have committed sufficient resources to represent the Class.
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18. Each Named Plaintiff appears by a next friend, and each next friend is sufficiently familiar with the facts of the child’s (or children’s) situation to fairly and adequately represent the child’s (or children’s) interests in this litigation.
19. Defendants have acted or failed to act on grounds generally applicable to the Class, necessitating declaratory and injunctive relief for the Class. Plaintiffs’ counsel know of no conflicts between or among members of the Class. IV. The Parties
A. The Named Plaintiffs CASSIE M.
20. Cassie is a 15-year-old girl who has been known to DCYF for more than eight years and has been in foster care for the last six years. Throughout her time in DCYF custody, the agency has failed to provide her with a safe, stable or permanent family. Instead, DCYF has moved Cassie through numerous and inappropriate placements; subjected her to inconsistent, harmful contact with her mother; and separated her from her four sisters. Although she was freed for adoption more than two years ago, upon information and belief, DCYF has left Cassie in foster care in a non-family group placement.
21. DCYF has been involved with Cassie’s family since at least September 2003. By November 2004, DCYF had received at least four separate reports of abuse and neglect, including sexual and physical abuse, in her family’s home. At that time, DCYF had knowledge that Cassie’s father had had a child with her oldest half-sister, who was pregnant at 17. DCYF also had information that Cassie’s father was a substance abuser, owned weapons, had been physically abusive toward Cassie, her mother, and her sisters and had threatened to kill them, and had been sexually inappropriate with another of Cassie’s older sisters.
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22. DCYF did not “indicate” any report of abuse and neglect until March 2005, when Cassie’s mother ordered Cassie’s 16-year-old sister out of their home. At this time, DCYF received a report that Cassie’s mother was abusing drugs and failing to care for her children, at least one of whom was infested with lice. DCYF again was told that Cassie’s father had sexually abused her oldest sister for years and had impregnated her, and that he had physically abused the girls and their mother. Cassie’s father was then in prison. Cassie’s mother’s then-boyfriend had a long DCYF history, including neglect and domestic violence and an extensive criminal record that included charges for indecent exposure and possession of drugs and firearms. Although the caseworker expressed concern about the boyfriend’s influence and noted that the boyfriend had punched Cassie’s older sister in the face, DCYF left Cassie and her sisters in the home. Subsequently, one of Cassie’s sisters reported that she had been sexually abused by her mother’s boyfriend.
23. In April 2005, Cassie’s mother was again “indicated” for neglect based on reports that Cassie, then eight years old, and her two sisters who remained in the home, ages five and 10, were sleeping alone in their apartment while their mother slept in a neighbor’s apartment. The apartment where the girls were living had no furniture or electricity, and the girls reportedly slept on the floor. DCYF also discovered that Cassie and her sisters suffered from chronic head lice, that was so severe that they were not permitted to attend school.
24. At this time, DCYF implemented support services and kept the children in the home, but Cassie’s mother was consistently non-compliant. In December 2005, DCYF learned that Cassie’s father had visited the home where Cassie, her mother, and her sisters were living in violation of a court order. DCYF failed to investigate.
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25. In February 2006, Cassie and her two sisters who had been living in the home were removed from their mother’s care based on her continued failure to comply with court-ordered treatment plans. DCYF initially pursued reunification with Cassie’s father, despite the fact that DCYF only permitted him to have supervised visitation with his children and that DCYF knew that he had physically and sexually abused some of the girls. At the time, he had no permanent housing and no place for the girls to live.
26. DCYF placed Cassie and her two sisters into separate foster homes. DCYF moved Cassie to a new foster home less than two weeks later. In June 2006, Cassie’s foster mother revealed to DCYF that she herself had been “red flagged” by DCYF. DCYF only then realized that the foster mother had an open case with DCYF and that the agency had been planning to terminate her foster parent license. Nonetheless, DCYF kept Cassie in this home for another nine months, when it moved her to a specialized foster home.
27. Also in 2006, Cassie’s younger sister, who was just six years old, was placed in a shelter. DCYF kept the young girl in two shelter placements for more than nine months. Cassie was very upset that her sister was in a shelter and asked multiple times for her sister to live with her.
28. In August 2007, when she was 10 years old, DCYF moved Cassie to a residential treatment center. Despite her DCYF caseworker and supervisor’s agreement in February 2009 that Cassie should be moved from her residential facility to a specialized foster home, and DCYF’s assessment in April 2010 that Cassie was not doing well in the facility, DCYF kept Cassie in this institution for almost three years.
29. DCYF ensured that Cassie had regular contact with her mother throughout her time in DCYF custody, even after her mother’s parental rights were terminated, and despite
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DCYF knowing that the visits were chaotic and stressful for Cassie, and that Cassie and her younger sister exhibited aggression and other behavior problems following these visits. Cassie’s mother often arrived at the visits late or cancelled them altogether, and when she did attend, she sometimes failed to pay attention to Cassie, which upset this young girl. On several occasions, Cassie reported to DCYF prior to a visit that she did not want to see her mother.
30. As early as April 2005, Cassie was taking medication for attention deficit hyperactivity disorder (ADHD), although a subsequent evaluation in October 2007 revealed that this diagnosis was incorrect. Cassie has also been diagnosed with adjustment disorder, disturbance of conduct, and bipolar disorder. She has been prescribed multiple psychotropic medications, and as of November 2010 she was taking medication multiple times a day. Cassie has also been diagnosed with learning disabilities and has an education plan in place.
31. In May 2008, more than two years after Cassie entered foster care, DCYF filed a petition to terminate her mother’s parental rights and in September 2008 Cassie was freed for adoption. Since this time, upon information and belief, DCYF has failed to find her a permanent home. Cassie often talks about wanting a family and she has expressed a desire to be placed with her younger sister in an adoptive home. In March 2010, DCYF reiterated its intent to find Cassie an adoptive placement. Yet, instead of seeking and securing an appropriate adoptive home for Cassie, as late as December 2010 DCYF continued to arrange visits and telephone contact between Cassie and her mother. In the meantime, Cassie remained in a nonfamily congregate setting. In June 2010, Cassie was moved to a group home because at 13 years old she had aged out of the previous treatment facility. As of December 2010, Cassie, at age 14, was still living in this second congregate placement.
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32. As a result of Defendants’ actions and inactions, Cassie has been and continues to be irreparably harmed. Defendants have violated Cassie’s constitutional and statutory rights by failing to protect her from harm; by separating her from her sisters; by failing to provide her with appropriate, least restrictive placements; by failing to provide her with mental health services necessary to prevent her mental health from deteriorating while in DCYF custody; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
33. Named Plaintiff CASSIE M. appears through her next friend Kymberli Irons. Ms. Irons has worked in the Providence School Department for 21 years and has been a special educator for 29 years. Ms. Irons holds Masters degrees in Special Education and in Integrated Education. She has served as a Behavior Specialist with the Providence School department for 12 years. Ms. Irons worked with Cassie as her Behavior Specialist when Cassie was between the ages of eight and nine. Ms. Irons also met with Cassie’s mother, and spoke with Cassie’s classroom teacher, principal, and assistant principal about Cassie on multiple occasions. Ms. Irons is truly dedicated to Cassie’s best interests.
ALEX AND JARED C. 34. Alex, eight years old, and Jared, 10 years old, are brothers who have been in DCYF foster care since 2006. DCYF has failed to provide the boys with safety, stability or permanency during their five years in care. DCYF moved the boys between multiple placements during their first two years in foster care while maintaining the goal of reunifying the boys with their parents, who repeatedly demonstrated that they were unable to provide a safe and stable home for their children. In total, Alex and Jared have each experienced at least six placements, including two in institutional settings and one in a foster home where they were both sexually
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abused. Upon information and belief, DCYF has left the boys separated from one another and their younger sister, and although they were freed for adoption in 2009, DCYF has not secured a pre-adoptive home for Jared.
35. Alex and Jared’s family has a long history with DCYF beginning in July 2002, before Alex was born. Prior to that, their mother’s rights to at least one of her three oldest children were terminated by another state. Their mother has a history of drug use, depression, psychiatric hospitalization, and noncompliance with treatment plans, which was known to DCYF. Their father has been charged three times with domestic assault, and has been incarcerated multiple times for these and other offenses. Prior to the boys being brought into care in November 2006, DCYF substantiated three reports against their mother for neglect, and one against her for physical abuse of their sister. Despite this, and despite DCYF’s knowledge of the boys’ mother’s continued drug use since at least 2002, DCYF maintained the boys at home until 2006.
36. In July 2006, it was reported to the police that the boys’ parents were involved in domestic violence and that both Alex and Jared reported that they had witnessed it. The boys moved to a shelter with their mother and younger sister. While they were living at the shelter, shelter staff reported to DCYF that the boys’ mother was overwhelmed by caring for her children and that she planned to drop them off with their father.
37. In early August, Alex and Jared’s mother dropped the boys off at their father’s house and drove off. Their mother and sister reappeared in the father’s home 12 days later. With DCYF knowledge, all the children remained with their father, despite his history of violence and DCYF’s previous recommendation that the children not be alone with him. DCYF also instructed that the children and their father reside with his mother (the children’s
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grandmother), yet further required that he not allow the grandmother to be alone with the children, as she had a DCYF history of child maltreatment.
38. However, in November 2006, DCYF discovered that the boys’ father had been missing for a month and that he had left them alone with their grandmother. At this point DCYF discovered that the boys’ mother and sister had been missing for two months. DCYF took the boys, and their sister once DCYF located her, into foster care. Soon thereafter, their parents were both arrested. Both parents spent significant portions of the next few years incarcerated due to the mother’s ongoing drug use and the father’s domestic violence, drug charges, assault, and vandalism. During much of this time, the children’s permanency goals remained reunification.
39. When the children entered DCYF custody in November 2006, DCYF placed Alex and Jared in a foster home separated from their younger sister. The boys have not lived with their sister since entering custody. DCYF moved the boys from their first foster home after just five months and placed them in a new foster home, where two adopted children were also living. In November 2007, DCYF confirmed that at least one of the adopted children in the home had been sexually abused by both parents in the home. DCYF closed the foster home following a police investigation, and the boys’ foster parents were both arrested.
40. As a result, DCYF moved Alex, then four years old, and Jared, then six years old, from this home and placed them in a shelter, where DCYF kept them for two months. In January 2008, DCYF moved the boys from the shelter into a foster home; around this time, it was noted that their behavior had begun to deteriorate and that the boys had begun throwing tantrums and had become destructive. After less than a month in this home, the boys’ foster mother reported that Jared said that Alex had acted out sexually towards him. When questioned
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by the caseworker, Alex reported that his former foster parents had sexually molested him and his brother. He also indicated that he had seen his father engage in sexual activity with his girlfriend.
41. DCYF removed the boys from the foster home in early 2008 and placed them, still only four and six years old, in separate group homes in different towns. At this time, nearly three months after DCYF removed them from the abusive home, they each received their first sexual abuse psychological evaluation and counseling session with a therapist. Alex disclosed to his therapist that their previous foster parents had had the boys engage in sexual activity, which the foster parents taped.
42. DCYF kept Alex in his group home until August 2009, a year and a half after placing him there. DCYF kept Jared in his group home until January 2010, two years after placing him there. Both boys received therapeutic services while at the group homes. Eventually, DCYF moved each boy to a different family foster home. Both continue to be treated for the trauma they have endured, and Jared has been prescribed psychotropic medications to help him control his behavior.
43. In March 2009, more than two years after the boys were brought into custody, Alex and Jared’s parents’ rights were terminated due to lack of progress in their case plans. Both boys remain in foster care today, and, although Jared, now age 10, is free for adoption, upon information and belief, he remains separated from Alex, and DCYF has not secured a pre-adoptive home for him.
44. As a result of Defendants’ actions and inactions, Alex and Jared have been and continue to be irreparably harmed. Defendants have violated Alex’s and Jared’s constitutional and statutory rights by failing to protect them from harm; by separating each of
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them from their siblings; by failing to provide them with appropriate, least restrictive placements; by delaying services necessary to help them cope with their traumas; and by failing to timely provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
45. Named Plaintiffs ALEX and JARED C. appear through their Next Friend, Gregory C. Elliott. Professor Elliott is a Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 28 years. Professor Elliott is a social psychologist, specializing in the social development of the individual and the integration of the individual into society. In his work, he has dealt with issues of child maltreatment. Due to his expertise and research, Dr. Elliott has been held by the First Circuit in this case to be “aware of the issues and problems children face in foster care and he is familiar with the perils to which Plaintiffs have been exposed,” and therefore declared an appropriate next friend for Named Plaintiff Danny and three other named plaintiff children whom he did not know personally in the instant lawsuit. Sam M. v. Carcieri, 608 F.3d 77, 93 (1st Cir. 2010).
TERRENCE T. 46. Terrence is a 16-year-old boy who has been in DCYF custody since he was six years old. In the 10 years that Terrence has been in DCYF custody, DCYF has failed to protect Terrence from harm and provide him stability or placement with a permanent family. During his time in DCYF custody, DCYF has moved Terrence through numerous placements, including four separate institutional settings where he has lived for over six years. Now 16, Terrence remains in foster care, isolated from his biological family without any prospects for living with a permanent, loving family.
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47. DCYF first investigated his mother for neglect in early 2000, when one of her children’s teachers found Terrence’s seven-year-old sister home alone. During this investigation, Terrence’s mother told the DCYF workers that Terrence was living with his godmother and had been for most of his life.
48. In early 2001, DCYF brought Terrence and his four siblings into DCYF custody when his mother was arrested for transporting drugs into the country. Six-year-old Terrence remained in his godmother’s home, where he had been living. DCYF knew that the godmother had a criminal history and lacked a stable home.
49. Terrence stayed in foster care with his godmother until December 2001, when DCYF removed him after she was arrested for dealing drugs in Terrence’s presence. In 2002, after he began counseling, Terrence revealed to his caseworker that he often had to participate in his godmother’s drug deals, passing money and parcels between individuals, and often sleeping in the car while she worked. His caseworkers also determined that Terrence had been physically abused by his godmother while in DCYF custody.
50. After DCYF removed Terrence from this home in late 2001, DCYF placed him in a licensed foster home. In June 2002, when he was in first grade, DCYF moved Terrence to a residential treatment center on the recommendation of his neurologist. At the time, he was noted to have attention deficit hyperactivity disorder (ADHD), poor behaviors and feelings of separation and loss.
51. In July 2002, Terrence was sent home from camp after telling a counselor that he “wanted to drown himself.” In January 2003, Terrence disclosed that an aunt had physically abused him.
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52. Terrence’s father’s rights were terminated in 2003 and his mother’s in 2005, but DCYF identified no pre-adoptive placements for him. Rather than finding him a family home in 2004, when his clinicians said he was ready to be discharged from his group home, or an adoptive family in 2005, when his parents’ rights were terminated, DCYF kept Terrence in the residential treatment center until January 2008, nearly six years after he had arrived there and four years longer than was therapeutically indicated.
53. In January 2008, DCYF placed Terrence in a foster home with his younger brother. His brother had also lived in an institution for years, had been diagnosed with major depression and post-traumatic stress disorder, and had made multiple suicide attempts. In April 2008, when Terrence had difficulty adjusting to this foster home, DCYF moved him into a group home. On the day DCYF moved him, Terrence gave his brother a long hug and cried. During the drive from the foster placement to the group home, Terrence was emotional and cried a lot.
54. In October 2008, DCYF moved Terrence and his younger brother to California to live with an aunt whom they had never met prior to her expressing interest in being a placement resource. While in California, it took months for the boys to receive medical insurance and necessary mental health services. Terrence was removed from this home in November 2009 and returned to Rhode Island, while his younger brother remained in California. At that point, Terrence was separated from all of his six siblings, some of whom he had not had regular contact with for years. In Rhode Island, DCYF once again placed him in a group home, where he was sad and disengaged and had attempted suicide. He was prescribed Adderall and Prozac. Upon information and belief, today Terrence remains in an institutional facility even though it has been recommended that he receive more one-on-one attention.
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55. As a result of Defendants’ actions and inactions, Terrence has been and continues to be irreparably harmed. Defendants have violated Terrence’s constitutional and statutory rights by failing to protect him from harm while in state custody; by failing to provide him with mental health services necessary to prevent his mental health from deteriorating while in DCYF custody; by separating him from his siblings; by failing to provide him with appropriate, least-restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
56. Named Plaintiff TERRENCE T. appears through his Next Friend, Gregory C. Elliott. Professor Elliott is a Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 28 years. Professor Elliott is a social psychologist, specializing in the social development of the individual. In his work, he has dealt with issues of child maltreatment and the integration of the individual into society. Due to his expertise and research, Dr. Elliott has been held by the First Circuit in this case to be “aware of the issues and problems children face in foster care and he is familiar with the perils to which Plaintiffs have been exposed,” and therefore declared an appropriate next friend for Named Plaintiff Danny and three other named plaintiff children whom he did not know personally in the instant lawsuit. Sam M. v. Carcieri, 608 F.3d at 93.
TRACY L. 57. Tracy, 16 years old, was taken into DCYF custody with her younger sister in 2002, when she was seven years old. In her nine years in foster care, DCYF has moved Tracy at least 18 times and through at least 13 placements, including two different residential treatment facilities, at least three different group homes, at least one shelter, and five foster homes. She
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has also been hospitalized at least 14 times. Tracy has been moved through 11 different schools since entering DCYF custody.
58. Prior to Tracy and her sister’s entry into foster care in 2002, their parents had been reported to DCYF at least five times for suspected neglect and abuse; at least two of these times resulted in investigations that were unfounded. In May 2002, it was reported to DCYF that Tracy, then six years old, had been sent home from school for two consecutive days for smelling like cat urine. The investigator found the home to be unlivable, as it was full of debris and clutter, had no running water, had a kitchen that was full of decaying food, smelled strongly of animal urine, and had rat holes on the outside. There were bruises and lesions on the younger girl’s face and body, including her eyes, buttocks, and groin. She stated during a medical exam that her mommy did it. The physician noted probable physical abuse, but the children were not removed from their parents’ care. The home was condemned and the family was required to move. DCYF filed a neglect petition against the parents in June 2002 on behalf of the girls, but left the girls in their mother’s care.
59. DCYF kept the girls with their parents for six months after the neglect petition was filed, during which time their caseworkers had persistent concerns about their home life, particularly the parents’ lack of permanent housing and general lack of parenting skills. The parent aide who visited the home also had continued concerns about the parents’ general parenting skills and the children’s care.
60. In December of 2002, it was reported to DCYF that there was domestic violence in the home and that the girls’ father had hit Tracy’s sister with “cords.” As a result of this investigation, DCYF took Tracy, then seven years old, into foster care custody with her sister. The next day, their foster mother observed bruises on Tracy’s sister’s buttocks, which
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both girls said were from their mother, father, and grandmother hitting her with a broken hairbrush, a punishment Tracy reported she had endured as well. Tracy reported that she had also been hit in the past, and that their parents would hit them with an orange cord and shove dirty socks in their mouths when they cried. Allegations of excessive and inappropriate discipline were founded.
61. DCYF moved Tracy and her sister from their initial foster home less than a week after they were placed there due to the foster parents’ difficulty in managing the girls’ behaviors. DCYF moved the girls to a shelter. Staff reported that the girls were aggressive with one another, had limited tolerance for direction, and threw tantrums when they did not get their way.
62. DCYF separated the girls and moved Tracy to a specialized foster home in late January 2003. A month later, Tracy became extremely agitated when sent to take a bath, and her foster parents were unable to calm her down. She was admitted to a psychiatric hospital, where she disclosed to a therapist that her head had once been held under water. She was diagnosed with post-traumatic stress disorder, attention deficit hyperactivity disorder (ADHD), and depression. She was prescribed Clonidine and Ritalin and sent back to the same foster home later that month.
63. As of June 2003, both of Tracy’s parents were cooperating with services, but they had yet to find permanent housing. DCYF continued to pursue reunification for the girls with their parents until October 2003, when Tracy disclosed that she had been sexually abused by her father. Tracy later reported that her mother knew about the abuse, and that when Tracy would exit the room crying, her mother would shove a dirty sock in her mouth. DCYF
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suspended visitation with both parents due to the allegations and on the recommendation of the girls’ therapists.
64. In May 2005, after Tracy attempted to testify against her father, she had to be admitted to a psychiatric hospital. This day in court was the first time she had seen her father in two years. After this hospitalization, her foster parents determined that they could no longer provide for Tracy’s needs, and DCYF placed her at a residential treatment facility. At this time, she was diagnosed with reactive attachment disorder in addition to her earlier diagnoses and was taking Zoloft, Seroquel, and Ritalin. She was nine years old. DCYF kept Tracy at the residential treatment facility for almost one and a half years.
65. In October 2006, DCYF transitioned Tracy to a foster family home but she was again hospitalized in December of that year. She was then moved in August 2007 to a specialized foster home, but was in crisis in October of that year. In March 2008, her therapist noted that Tracy’s reactive attachment disorder was so severe that she would have to be placed in residential care, as she could not function in a family setting at that time.
66. Since she left her most recent foster home in March 2008, Tracy has moved between residential treatment centers, shelters, group homes and psychiatric hospitals at least 18 times, sometimes out of state. Tracy no longer is visited by her mother, and only rarely sees her sister. Upon information and belief, although Tracy is free for adoption, DCYF is not pursuing an adoptive placement for her.
67. As a result of Defendants’ actions and inactions, Tracy has been and continues to be irreparably harmed. Defendants have violated Tracy’s constitutional and statutory rights by failing to protect her from harm while in state custody and by failing to
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provide her with adequate and consistent mental health services necessary to prevent her mental health from deteriorating while in DCYF custody.
68. Named Plaintiff TRACY L. appears through her next friend Kymberli Irons. Ms. Irons has worked in the Providence School Department for 21 years and has been a special educator for 29 years. Ms. Irons holds Masters degrees in Special Education and in Integrated Education. She has served as a Behavior Specialist with the Providence School department for 12 years. Ms. Irons worked with Tracy as her Behavior Specialist when Tracy was between the ages of eight and ten. Ms. Irons saw Tracy daily over the course of approximately one year, and was involved in her educational and behavioral planning. Ms. Irons also met with multiple foster families on Tracy’s behalf and helped plan while Tracy was hospitalized. Ms. Irons is truly dedicated to Tracy’s best interests.
DAVID T. 69. DAVID T. is 18 years old and has been in DCYF’s custody for over 15 years. DCYF has cycled him through more than 14 placements, all but two of them shelters or other institutions. When David was four years old, a potential adoptive placement fell through, and David experienced loss and trauma that should have been treated. Instead, DCYF moved David to a shelter. David has not lived in a home since, and his lifetime of living in institutions, compounded with the stress of his disrupted adoptive placement, has caused his mental health to steadily deteriorate. David entered care when he was only two years old, and finding him a permanent, loving family was completely feasible. Yet DCYF has denied him the appropriate decision-making, services, and planning necessary to find him a permanent home. DCYF has done nothing to prepare David to live in a real home, and for the last decade it has not taken any of the necessary steps toward finding David a family with whom to live.
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70. DCYF removed David from his mother in 1996 due to neglect. DCYF had previously taken his older brother into custody on grounds of neglect and possible sexual abuse by his mother. By the time David entered foster care, his mother had already been deemed unfit to care for at least one of David’s siblings and had lost her parental rights. Despite clear indications that David had been sexually abused while in his mother’s care, DCYF failed to ensure that he received a sexual abuse evaluation or appropriate treatment upon his entry into foster care or thereafter.
71. DCYF first placed David with a foster mother with whom he lived for two years and to whom he became attached. This was the first—and last—loving, lasting, stable home David would experience for the next 11 years. At the age of four, David was removed from the foster mother he referred to as “Mommy Mary” because she was unable to continue to care for him. Despite its obligation to place David in a family-like environment, DCYF moved the young child to a shelter. DCYF next moved David, not to a foster home, but to another shelter. By this time, David’s mother’s parental rights had been terminated, leaving him free for adoption. David spent a total of three months in shelters while DCYF tried to locate an adoptive home.
72. DCYF next sent David to an aunt in Michigan who expressed interest in adopting him. The aunt willingly cared for David, but encountered housing problems and other difficulties. Instead of supporting the aunt so that she could keep David, DCYF brought him back to Rhode Island and put him in a shelter where he had previously stayed. When he arrived there, he refused to get out of the car and pleaded with the caseworker to bring him back to “Mommy Mary.” Shelter staff approached the car and told four-year-old David, “the rules here
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have not changed.” David silently got out of the car and walked into the shelter. This was at least the fifth placement David experienced before his fifth birthday.
73. David’s behavior deteriorated while living at the shelter. Although his school indicated that David needed services to address his increasingly disruptive behavior, DCYF failed to provide them. At times DCYF failed to fulfill its responsibility to transport David to school, leaving him to spend entire days in the shelter with nothing to do. David’s behavior grew worse, and after several months the shelter asked DCYF to move him. DCYF then sent David to yet another institution, where he was injured because he did not receive proper supervision. David was severely scalded there when, at the age of five, he tried to heat water in a microwave oven.
74. When another of David’s aunts expressed interest in caring for David, DCYF failed to pursue this opportunity. By 2000, four years after assuming custody of David, DCYF still had no viable plan for finding a permanent home for him. DCYF was aware that David’s emotional state was steadily declining, but it failed to provide the therapeutic services he needed. When the facility where David was residing informed DCYF that it could not meet his needs, DCYF nevertheless left David in that institution for several months, aware that his mental health needs were only worsening.
75. DCYF placed David in a psychiatric hospital when he was six years old. Although he was scheduled to be released from the hospital within a month, DCYF left David in this highly restrictive placement for five months, until July 2001, simply because it had no other placement option for him. DCYF finally moved David to St. Vincent’s Home, a residential treatment facility where he lived for the next two years until he was eight years old. While at St. Vincent’s, David was sexually abused by a roommate, began to act out sexually, and started to
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wet his bed almost nightly. David’s mental health deteriorated to such an extent that in 2003 DCYF moved him to yet another institution where he required one-on-one supervision. Although DCYF’s case plan for David indicated that he would spend only three to six months at this institution, after which he would need to live with a family, David remained at the institution for three years, and he has yet to be placed with a family.
76. Over a four-month period in 2003, David was restrained 105 times by facility staff. That year, DCYF decided that, at the age of 10, after eight years in DCYF custody, David had become “too damaged for placement.” DCYF finally permitted adoption recruitment staff to meet David in 2004, eight years after it registered him for adoption. However, later that year it was decided that adoption would be inappropriate for David and suspended efforts to find an adoptive home for him.
77. In 2006, DCYF moved David to a residential treatment facility out of state. Although David was only 12 years old, he was placed with an 18-year-old roommate. While at this facility, David engaged in sexual self-mutilation. When facility staff asked DCYF if sexual abuse was an issue for David, DCYF erroneously reported that there was no history of sexualized behavior and no known sexual abuse. Between 2005 and 2006, David gained over 50 pounds.
78. Despite DCYF’s obligation to ensure the safety and well-being of Plaintiff Children through frequent caseworker visits, five different DCYF case workers met with David a total of only 12 times from 2001 to 2005, including only one visit per year in 2004 and 2005. David has had no adult continuously involved in his life. Because DCYF has moved David so many times, his education has been fragmented and disrupted. David attended three different kindergartens and was moved to new schools four more times between the first and seventh grades.
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79. In May 2007, DCYF sent David to live in an institution in Massachusetts. Health care professionals have documented that his acute service needs result in part from his history of multiple placements. David has been diagnosed with bipolar disorder, mild mental retardation, and “environmental/situational influences, including his history of neglect and his multiple placements.” DCYF has taken few, if any, steps to prepare David for life outside an institution. David has an older brother who has also come forward to care for him, but DCYF has not taken the necessary steps to determine whether the brother would be a suitable permanent caretaker.
80. As a direct result of Defendants’ actions and inactions, David has been and continues to be irreparably harmed. Having entered foster care at the age of two, he is still languishing in care over 15 years later. DCYF’s failure to provide David with permanency causes him harm. David now has serious psychological problems that DCYF has exacerbated by moving him from placement to placement and by failing to provide mental health services to treat his problems as they emerged when he was a young boy. DCYF has also caused David harm by not providing his mental health professionals with his full history, depriving them of information necessary for his proper treatment.
81. Defendants have violated David’s constitutional and statutory rights by failing to protect him from harm while in state custody; by failing to provide him with mental health services necessary to prevent his mental health from deteriorating while in DCYF custody; by failing to provide him with appropriate, least-restrictive placements; and by failing to provide necessary and appropriate permanency and adoption services, all of which are required by law and reasonable professional judgment.
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82. Named Plaintiff DAVID T. appears through his Next Friend, Mary Melvin. Ms. Melvin has worked as a Senior Companion in the Senior Companion Program at the Department of Elderly Affairs in Cranston, Rhode Island. Previously, Ms. Melvin worked for many years at a nursing home for the elderly and handicapped in Providence, Rhode Island. Ms. Melvin served as a foster parent for at least 25 children in Rhode Island’s foster care system over a 20-year period. In 1993 and 1997, she received the Rhode Island Foster Parent of the Year Award. Ms. Melvin was a foster parent to David T. from 1996 to 1998, and she continued to be a resource for him after he left her care. Ms. Melvin resides in North Providence, Rhode Island.
DANNY B. 83. DANNY B., age 10, entered foster care seven years ago with his younger brother Michael, but has been known to DCYF for most of his young life because of his mother’s chronic neglect of him. In the years that he has been in custody, he has resided in what DCYF knows can only be temporary and inappropriate placements, in one of which he was seriously abused. Throughout his time in care, DCYF has failed to provide timely psychological services to address Danny’s mental health problems, which are becoming more acute as he remains without a permanent home. 84. Danny and his brother Michael were first reported to DCYF as being neglected by their mother in January 2004. DCYF investigated the report and decided to take no action. Danny and his brother again came to the attention of DCYF four months later when, at ages three and two, they were found wandering unsupervised outside their home at 6 a.m. When the children were returned to their home, their mother, who has an extensive arrest record, was found unconscious from alcohol abuse. DCYF left Danny and his brother in the home, but required the mother to agree to certain services.
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85. In January 2005, Danny and his brother were again reported wandering unsupervised outside the home. DCYF investigated the report, but again decided to take no action. The next month, DCYF visited the home and found it to be unfit for human habitation, with human feces all over the bedroom and nowhere for Danny and Michael to sleep; their mother was again intoxicated. DCYF left the boys in this wretched home. In March 2005, DCYF received a report that the brothers were again wandering the streets. Despite these repeated reports, DCYF did not remove Danny and his brother from this harmful environment until April 2005. When DCYF did remove them from their mother’s home, it assigned Danny and his brother the goal of reunification.
86. DCYF first placed the brothers in the unlicensed home of their maternal great-grandmother, without first conducting a safety and background check. The greatgrandmother told DCYF that she could only care for Danny and Michael temporarily and the brothers had to be moved within the week because of the great-grandmother’s poor health. Instead of locating another home where the brothers could be together, DCYF separated Danny and Michael and placed them in separate foster homes. DCYF later returned Michael to the boys’ maternal great-grandmother.
87. In July 2005, DCYF placed Danny in the home of a foster mother with a DCYF history of abuse complaints dating back to 1999. These reports included allegations that she had left children she was fostering with an unapproved caretaker for over a week, during which time the children were beaten with a wire hanger and other objects. This is the home in which Danny was later sexually assaulted.
88. During 2005, Danny suffered mental health problems which DCYF failed to timely address. Although DCYF knew that Danny was in need of specialized services, it did
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not provide them to him until the end of August 2005. By the end of 2005, DCYF had evidence that Danny needed a sexual abuse evaluation.
89. Throughout 2005, Danny’s mother made no progress towards addressing the problems that had led to the boys’ removal. By May 2005, she was not complying with drug treatment, had tested positive for drugs, and was missing visits with her sons, causing Danny significant distress. By June, she had been arrested twice for drug possession and had stabbed herself in the chest in a suicide attempt. By August, she was homeless. At none of these junctures did DCYF change Danny’s permanency goal from reunification to another, more viable and appropriate goal. In December 2005, DCYF was directed to free Danny for adoption by terminating his mother’s parental rights if no progress was being made toward reunification by March 2006. Although no progress was made, DCYF failed to file a termination petition until July 2006.
90. In July 2006 five-year-old Danny was sexually assaulted in the home of the foster mother whose prior dangerous history was known to DCYF. The foster mother’s 15-yearold grandson, who lived in the home, was seen emerging from the bathroom of the house, his penis erect, when he grabbed Danny, pulled him into a bedroom, and locked the door. Danny screamed, “Don’t touch me!” When the grandson opened the door, Danny’s pants were down. Danny was immediately removed from this foster home, and the foster home was closed the same day. Danny told investigators that the grandson had sexually exposed himself on approximately four prior occasions. During a previous intervention in the home, DCYF had instructed the foster mother to ensure that the grandson sleep in a bedroom separate from another child.
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91. After this episode of sexual abuse, DCYF placed Danny in yet another temporary foster home. In August 2006, DCYF reunited him with his brother in the home of his maternal great-grandmother, who was unable to offer the boys a permanent home. Upon being placed together, both boys began to exhibit sexualized behaviors. Within a month, DCYF removed Danny from his great-grandmother’s home because of these issues. DCYF sent Danny to a group home in Middletown.
92. Excluding respite placements, as of June 2007, Danny had been in at least six placements while in DCYF custody, including DCYF’s original placement of the brothers with their mother for in-home services. Despite the fact that Danny is only 10 years old and has been in care since 2004, he remains separated from his brother, with no prospect of adoption.
93. As a result of Defendants’ actions and inactions, Danny has been and continues to be irreparably harmed. Danny has been sexually abused in an unfit foster home and, at the age of five, was institutionalized to address his acute mental health problems. Because DCYF has not provided proper permanency planning, Danny does not have any current prospect of growing up in a loving and permanent home. The lack of any prospect of growing up in a safe and stable home is psychologically harmful. Danny has experienced mental health problems which DCYF has failed to adequately address.
94. Defendants have violated, and continue to violate, Danny’s constitutional and statutory rights by failing to protect him from harm while in care; by failing to develop and implement an appropriate permanency plan in a timely manner to allow him to secure a permanent home; and by failing to timely address his mental health needs, all of which are required by law and reasonable professional judgment.
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95. Named Plaintiff DANNY appears through his Next Friend, Gregory C. Elliott. Professor Elliott is Associate Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for the last 28 years. Professor Elliot is a social psychologist, specializing in the development of the individual. In his work he has dealt with issues of child maltreatment and the integration of the individual into society. Due to his expertise and research, Dr. Elliott has been held by the First Circuit in this case to be “aware of the issues and problems children face in foster care and he is familiar with the perils to which Plaintiffs have been exposed,” and therefore declared an appropriate next friend for Danny and three other named plaintiff children whom he did not know personally in the instant lawsuit. Sam M. v. Carcieri, 608 F.3d at 93.
B. The Defendants 96. Defendant LINCOLD D. CHAFEE is the Governor of Rhode Island and is
sued in his official capacity. Pursuant to Article IX, Section 1 of the Constitution of Rhode Island of 1986, the executive power of the state is vested in the Governor. Pursuant to Article IX, Section 2 of the Constitution of Rhode Island of 1986, the Governor is responsible for ensuring that all executive departments and agencies within the state, including DCYF, faithfully execute and comply with applicable federal and state law. Governor Chafee maintains his principal office at the Office of the Governor, State House, Room 115, Providence, Rhode Island, 02903.
97. Defendant STEVEN M. COSTANTINO is the Secretary of the Executive Office of Health and Human Services in Rhode Island and is sued in his official capacity. The Executive Office of Health and Human Services provides common strategic planning, fiscal management, and related policy and programmatic oversight to and across designated human services departments within the Rhode Island executive branch, including DCYF. Secretary
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COSTANTINO maintains his principal office at the Pastore Complex, Hazard Building, 74 West Road, Cranston, Rhode Island, 02920.
98. Defendant JANICE E. DEFRANCES is the Director of the Department of Children, Youth and Families and is sued in her official capacity. Pursuant to section 42-72-1 of the Rhode Island General Laws, Director DeFrances is responsible for administering certain child welfare services and programs, including services and programs provided and administered by DCYF, and assuring that all such services and programs operate in conformity with constitutional, statutory, and regulatory requirements. Director DeFrances serves by appointment of the Governor. Director DeFrances maintains her principal office at the Department of Children, Youth and Families, 101 Friendship Street, Providence, Rhode Island, 02903. V. The Rhode Island Child Welfare System
99. The Department of Children, Youth and Families is responsible for ensuring the safety and well-being of the children it takes into custody in response to allegations of abuse or neglect. Its Director, Defendant DeFrances, is responsible for administering and managing all child welfare staff and services statewide and for reporting to the Governor, Defendant Chafee.
100. DCYF has the duty to deliver child protective services, which include the investigation and assessment of reports of abuse and neglect occurring in family homes and in foster care placements, and the implementation of timely, appropriate corrective steps, including a child’s removal from home or a foster care placement if warranted to keep the child safe when abuse or neglect of the child may have occurred.
101. DCYF also has the duty to ensure that children in state foster care custody are safe and to provide state-supervised services that meet the basic needs of children in its foster
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care custody. Such services include placing children in screened, licensed foster homes or other appropriate placements and providing children counseling to help them deal with the trauma that caused them to be removed from their homes and with the further trauma associated with being separated from their families. Foster care services also include the development and implementation of appropriate permanency plans designed to return children home quickly and safely, or, if that is not possible, timely providing children another permanent home, usually through adoption. In addition, as the legal custodian for children in state foster care custody, DCYF is responsible for ensuring that all children in foster care receive medical, dental, and mental health treatment; education; and assistance with developmental needs.
102. DCYF operates four regional offices responsible for case management and planning and for ensuring the delivery of necessary services to children and families; a statewide Adoptions Unit responsible for adoption-related functions such as recruiting adoptive parents, matching children with adoptive families, and coordinating with private agencies that contract with DCYF to provide specialized and targeted adoption planning and support; and a statewide Licensing Unit responsible for licensing and monitoring foster homes, adoptive homes, and group homes, including relative and child-specific placements. Licenses must be reviewed every six months and must be renewed annually to remain valid.
103. DCYF contracts with private child-placing agencies in Rhode Island for the provision of many foster care services, including the operation of shelters, group homes, residential treatment centers, and therapeutic foster homes. DCYF remains legally responsible for every Plaintiff Child who receives foster care services from a child-placing agency.
104. The Licensing Unit is also responsible for licensing child-placing agencies, promulgating the rules governing them and the standards that they must meet in furnishing
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contracted services, and monitoring their compliance with all applicable rules and standards. The Licensing Unit is also responsible for investigating regulatory violations and enforcing child-placing agencies’ compliance with DCYF regulations and policies. VI. Defendants Have Long Known That Rhode Island’s Child Welfare System Cannot
Fulfill Its Duties to Plaintiff Children Without Urgent, Systemic Reform A. The 2003 System of Care Task Force Report Concluded that the Child
Welfare System Was Harming Children and That Systemic Reform Was Necessary 105. In 2001, the State of Rhode Island created a System of Care Task Force (“Task Force”) to study existing child welfare services in the state and “to design a full system of services that will provide effective supports and services to children and their families.” The Task Force’s January 2003 report confirmed that the state’s foster care system was “disorganized and fragmented” and identified widespread systemic failings and inadequacies in the system. The report concluded that abused and neglected children in state custody were being harmed as a direct result of these failings. 106. The Task Force report documented that DCYF unlawfully allowed children to languish in foster care for years: “[N]early 3 in 10 children spend more than 3 years in care and nearly 1 in 8 spends 6 or more years in care. This data contradicts the mandate that ‘foster care’ should be used as a temporary solution to perilous problems with families. Federal and state law prescribe shorter time periods in which to achieve permanency for children.” 107. The report found that DCYF failed to maintain an appropriate array of suitable placements for children in foster care: “Additional foster home resources, particularly for those ‘hard to place’ groups, are necessary in order to meet the needs of children entering placement.” Instead of “actually choosing a home on the basis of suitability” for the individual child, placements were dictated by whatever bed happened to be available at the time. The
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inadequacy of the placement array was due, in part, to inadequate reimbursement rates for foster parents and service providers and to the common perception of DCYF “as bureaucratic, unwieldy, insensitive and lacking in a child centered staff who can respond to foster families’ need for service in a timely fashion. Personal styles of both administration and line staff have been described over a range from ‘caring to cruel.’” This perception, along with the low reimbursement rates, was driving needed resources out of the system: “Over approximately a five year period, an alarming decline in the total number of licensed foster homes has been evident.”
108. The Task Force report found major deficiencies in the system’s delivery of essential services to children in foster care and their families, problems it attributed, in part, to low reimbursement rates for service providers: “The State lacks sufficient out-patient services for children and families. This has been attributed to minimal supply, despite the demand, reflecting inadequate reimbursement rates.” “Psychiatric care for [DCYF-involved] children and youth in Rhode Island… has been primarily driven by our system of reimbursement for care, rather than the individual needs and best interest of the patient.” DCYF’s failure to coordinate services for children in the foster system also hindered timely access to psychiatric services.
109. The Task Force also identified significant unmet workforce needs that directly resulted in harm to children: “Training for line staff is needed on gathering and communicating the types of child specific information that is critical for matching purposes. . . . Numerous foster placements are disrupted and resources lost due to poor communication.” Other personnel problems identified in the report included insufficient supervisory resources: “Due to the high volume of licenses that are processed on a daily basis and the number of social
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caseworkers that must be supervised, the need for additional support for the supervisor remains a necessity.”
110. The Task Force concluded that children in state foster care custody were suffering physical and mental harm and trauma as a direct result of the child welfare system’s failings and deficiencies. Increasing numbers of children in foster care were being admitted to psychiatric hospitals in Rhode Island because of limited alternative treatment opportunities. Those children and youth suffered from a wide spectrum of mental illnesses, including adjustment disorder, major depression, post-traumatic stress disorder, and bipolar disorder. The Task Force found that children and their families had to endure excessive waits for necessary care because the system lacked outpatient mental health services and because mental health services were fragmented and lacked coordination. Similarly, the Task Force found that youth who had been discharged from in-patient treatment had to be readmitted because the system did not provide sufficient treatment alternatives to psychiatric hospitalization for youth with mental illness. This issue disproportionately affected adolescents in foster care.
111. The Task Force found that children were being harmed by being moved repeatedly among inappropriate DCYF placements. One manifestation of this harm was in education: “When children experience multiple and/or frequent moves from one placement to another, their academic progress is interrupted and gaps in their education develop. It is common among youth who spend a significant amount of time roaming around the placement system to be 2 or 3 years behind their peers in their education; many leave the system without a high school diploma.”
112. The Task Force report made clear that Defendants’ child welfare system was beset by systemic problems that were causing harm to children.
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B. The 2004 Federal Child Welfare Review Identified Widespread Problems in Rhode Island’s Child Welfare System 113. Because Rhode Island receives federal funding to operate its child welfare
system, it is subject to periodic reviews, Child and Family Service Reviews (“CFSRs”), conducted by a division of the United States Department of Health and Human Services (“HHS”). These reviews are meant to assess whether states are in substantial conformity with certain federal child welfare requirements in the areas of child safety, permanency, and wellbeing, to determine what is actually happening to children and families receiving child welfare oversight and services, and to assist states to better help these children and families.
114. Rhode Island’s CFSR was completed in 2004. In nearly every area reviewed, Rhode Island failed to meet federal standards, often by a wide margin. Rhode Island failed in the following areas: protecting children from abuse and neglect; safely maintaining children at home when possible and appropriate; providing permanency and stability in children’s living situations; preserving continuity of family relationships and connections; enhancing families’ capacity to provide for children’s needs; ensuring that children receive services to meet their educational needs; and ensuring that children receive services to meet their physical and mental health needs. The CFSR found that, in 39 percent of cases, caseworkers failed to make monthly visits with children on their caseloads. These visits are essential to ensuring that children are safe. The CFSR further found that, in 66 percent of cases reviewed, caseworkers failed to make required visits with parents of Plaintiff Children, a key element in successful reunification of children and their parents. Finally, the CFSR found that children were not receiving adequate services to meet all of their physical and mental health needs 39.6 percent of the time.
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115. Rhode Island also failed to meet federal requirements for five out of six “outcome measures” reviewed: repeat maltreatment; maltreatment while in foster care; re-entry into foster care; timely reunification; and multiple placements. For example, the CFSR reported that 1.1 percent of children in foster care were being reabused or neglected while in foster care, far above the then-national norm of 0.57 percent. The CFSR also found that 19.2 percent of Rhode Island children who were discharged from foster care re-entered DCYF custody within 12 months, compared to the accepted national norm of 8.6 percent.
116. Rhode Island also failed to meet federal requirements for six of seven “systemic factors” reviewed: its case review system; its quality assurance system; its training; its service array; its responsiveness to the community; and its licensing, recruitment, and retention of foster and adoptive parents.
C. The 2005 T.J. Wright Child Fatality Report Called for Systemic Reform 117. After T.J. Wright was killed by foster parents chosen by DCYF, a Child
Fatality Panel conducted a full investigation into the matter. The Child Fatality Panel issued its report in October 2005, concluding that the Rhode Island child welfare system had serious, systemic, and pervasive problems. Among them:
• Background checks and other due diligence necessary to assure basic safety before placing a child in a kinship home were not being performed;
• Children were being placed in homes that were not licensed by DCYF to care for foster children, either because the homes had never been licensed or because the license had expired;
• Foster care home license applications were pending for unacceptable periods of time;
• “The caseloads of the social workers” were “untenable” and “social workers [were] unable to visit the very children they pledge to protect;” and
• Supervisors were not providing adequate supervision to caseworkers.
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118. The Child Fatality Panel’s Report made 15 specific recommendations, including:
• The DCYF Director of Licensing or the Director of a Family Support Unit should be required to authorize the placement of a child in a kinship foster home since many children were being placed in relative care before licensure was completed;
• Social worker caseloads should be reduced to no more than 14 families per social caseworker;
• DCYF should implement an active supervision plan to remedy the failure of supervisors to actively supervise their caseworkers;
• The DCYF Licensing Unit should establish a firm six-month timetable for completing the licensure process on any family foster home; and
• Kinship placements should receive the background checks and other due diligence performed on third-party foster homes to assure basic safety before a child is placed in a kinship home.
D. The Child Advocate’s 2006 Report Found Little Progress Had Been Made 119. On October 31, 2006, the Rhode Island Child Advocate reported on
DCYF’s progress in implementing the recommendations of the Child Fatality Panel. The Child Advocate concluded that DCYF had not reduced social worker caseloads and had not implemented performance evaluations or other reasonable means of supervising social workers and assuring accountability. As a result of these shortcomings, children in foster care remained in peril.
E. A 2006 Federal Regional Review Revealed Little to No Progress in Improving the Child Welfare System 120. After failing its Child and Family Service Review in 2004, Rhode Island
was required to submit a Program Improvement Plan (PIP) to the federal government. The PIP, approved in August 2005, requires that DCYF make quarterly reports to the federal government on its progress in achieving the goals set out in its plan. The federal government also conducts
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regional reviews of such progress. In June 2006, DCYF submitted its “Annual Progress and Services Report” to HHS, revealing that its ability to keep children safe had worsened since 2004, with an increase in both the recurrence of maltreatment to children and the incidence of child abuse or neglect experienced by children in DCYF care.
121. Children’s permanency and stability had also worsened, with increases in the percentage of children who experienced two or more placements during their first 12 months in care. DCYF also reported that, nearly two years after failing to meet the federal standards in 2004, DCYF was less effective at promoting reunification with parents, at securing guardianship or permanent placement with relatives for children, at supporting the relationship of child and parents, and at placing children in homes located near their siblings and parents. Caseworker visits with children had also decreased since 2004.
122. According to DCYF’s sixth quarterly report on the status of its progress between November 18, 2006 and February 12, 2007, Rhode Island continues to fail to meet the national accepted norm for the incidence of child abuse and neglect in foster care.
F. The Rhode Island Senate Has Recognized the Child Welfare System’s Chronic Failings 123. On March 22, 2007, after a legislative investigation and hearing, the Rhode
Island Senate passed Senate Resolution 07-R128, in which it articulated numerous concerns in a series of findings. For example, the combination of rising caseloads and staff turnover was “creating a downward cycle of effectiveness and morale” among DCYF social workers.
124. The Resolution noted that DCYF’s problems were not new: “Numerous studies and recommendations have called on the department to institute a better coordinated and managed approach to the behavioral health needs of children.” The Senate declared that “DCYF must develop outcome and quality measures to guide funding and program design for child
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welfare prevention and support services, including the use of performance-based contracting with providers of care.”
125. Based on these and other findings, the Rhode Island Senate formally requested ongoing monthly reports from DCYF to address the Senate’s concerns about caseloads, overtime hours and costs, and “[t]he Adoption and Foster Care Unit’s performance and outcome measurements, including numbers of homes licensed, awaiting training, and awaiting licensure by type of home (therapeutic, foster, kinship, pre-adoptive).”
126. Referring to the outcome measures used in the federal review, the Senate also formally requested biannual reporting of “progress toward achieving standards for the specific measures. . . [for] safety, permanency and well-being.” Finally, the Resolution requested biannual reports of “[t]he percentage of contracts issued by DCYF that report on specific family and child-focused outcomes, and include independent evaluations of the contracted-services effectiveness; and [s]ystem changes made to address the behavioral health needs of children in the most appropriate settings.” VII. Current Systemic Child Welfare Failings and the Resulting Harm to Children
127. Defendants have failed to take appropriate steps to reform Rhode Island’s dysfunctional child welfare system, despite clear evidence that the system’s failings have deepened, have hurt children, and are putting children at further risk of harm.
A. Plaintiff Children Are Abused and Neglected in Foster Care 128. When DCYF takes a child into state foster care custody, it is responsible for
the child’s safety and well-being as long as the child remains in custody. DCYF has failed to develop and provide the range of services and systems necessary to ensure the safety and wellbeing of the children in its foster care custody. Plaintiff Children suffer harm as a direct
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consequence of this failure. There is no clearer example of this than the abuse or neglect of children while in foster care, such as the abuse suffered by Named Plaintiffs Alex, Jared, Terrence, David and Danny.
129. In five of the six years from Federal Fiscal Year (FFY) 2000 through FFY 2005, Rhode Island recorded the single highest rate of substantiated child abuse or neglect occurring to children in foster care among all states that reported data. Not only has Rhode Island’s rate of abuse or neglect of children in foster care remained at or near the worst in the nation, it has consistently far exceeded benchmarks set by the federal government. In FFY 2004, 1.32 percent of children in foster care in Rhode Island were abused or neglected, more than twice the federal benchmark of a maximum rate of abuse or neglect of 0.57 percent for children in foster care. The following year, FFY 2005, the incidence of abuse or neglect of children in foster care in Rhode Island rose to 1.59 percent, or 2.79 times the federal benchmark.
130. Things have only gotten worse recently. For example, DCYF Region III recorded a 2.01 percent rate of abuse or neglect in care in May 2006. At the same time as Rhode Island’s rate of abuse in care has risen, the federal benchmark has been revised to reflect a lower acceptable rate of abuse in care nationwide; in June 2006, the federal government published a new benchmark of 0.32 percent or less. In February 2007 alone, DCYF reported eight substantiated instances of abuse or neglect in care by a foster parent or facility staff. If abuse and neglect continues at this pace, Rhode Island would have a rate of abuse or neglect in care of 3.1 percent for the year 2007, or almost ten times the new federal benchmark.
131. The rate of abuse or neglect of children in foster care in Rhode Island is so high that children in Defendants’ care are actually more likely to suffer abuse or neglect than their peers in the general population. In 2005, the most recent year for which data are available,
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the rate of abuse or neglect for children in the general population was 1.37 percent but the rate of abuse or neglect for children in foster care was 1.59 percent.
132. The high rates of abuse or neglect of children in DCYF care are the direct consequence of Defendants’ actions or inactions. DCYF assigns such large caseloads to its social caseworkers that they are unable to make the regular face-to-face visits to Plaintiff Children that are essential to ensuring that these children are safe. DCYF has so few foster homes that it places children in homes without licenses, depriving them of basic protections of foster parent background checks and training. DCYF also allows licenses to lapse without taking any additional steps to ensure that Plaintiff Children in homes with lapsed licenses are safe. The shortage of foster homes forces DCYF workers to make poor decisions when faced with a choice of, for example, whether to place a child in an unlicensed, unsafe home, or in an inappropriate institution. DCYF fails to monitor or support foster parents who are managing difficult and stressful situations involving the children they parent. DCYF also fails to provide the treatment and services necessary to ensure that children’s behavior does not deteriorate in foster care. Instead of appropriately investigating and addressing abuse or neglect in foster placements, DCYF continues to rely on foster care settings known to pose a risk of harm to children. The high incidence of abuse or neglect in foster care is the predictable consequence of such conduct by Defendants.
B. Defendants Place Plaintiff Children in Homes and Institutions that Do Not Meet Their Needs and That Do Not Comply With Reasonable Professional Standards 1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements 133. In the Statewide Assessment that DCYF submitted in 2003 as part of its
federal review, it admitted that it was “not able to assure that children are placed in the types of
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placements that are the most family like and most appropriate for their individual needs, both at the time of initial entry and throughout their stay, because of a serious lack of foster family homes, resulting in demand for and use of all other types of placements. One of Rhode Island’s critical needs is for a sufficient number and type of foster homes so that the first placement in foster care is an appropriate match. We all too often place a child in a less than ideal placement at the time of entry, which later increases the likelihood that a subsequent placement will need to be made.”
134. DCYF’s chronic shortage of a sufficient number and variety of placements is due, in part, to its failure to recruit, license, train, and support prospective foster parents. Further, under DCYF’s current system, potential foster parents may have to wait for more than a year to be licensed by DCYF. The inadequate payments DCYF makes to foster parents to provide for children’s room and board are another contributing factor. DCYF also has trouble retaining foster parents, in part because foster parents can feel ill-treated by the agency.
135. Because DCYF does not have enough suitable foster care placements, it typically places Plaintiff Children in the next available bed, regardless of whether that placement meets children’s needs and regardless of whether they will receive adequate care and supervision. DCYF places children in homes or institutions specifically known to be mismatched to their needs, and often the first placement DCYF makes for a child, even an infant, is in a shelter, where a child can then linger for months.
2. Defendants Unnecessarily Place Children in Shelters and Institutions, Where They Stay for Too Long
136. Under federal law and reasonable professional standards, children taken into foster care custody must be placed in the least restrictive and most family-like environment possible, taking into account the child’s particular needs. Most children need to live with
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families and not in institutions. Nevertheless, DCYF places an extraordinary number of Plaintiff Children in group homes, emergency shelters, and other institutions, even when such placements are not warranted by children’s individual needs. In FY 2004, the last period for which data are available, Rhode Island placed 36 percent of children in its foster care custody in group or institutional settings—almost twice the national average of 19 percent. The situation today is even worse. In February 2007, DCYF placed 29 percent of the children newly removed from their homes in shelters, and DCYF placed a total of 48 percent in group or institutional settings. Many remain in these inappropriate placements for months or years.
137. Because DCYF typically places children in the next available bed, many children in state foster care custody end up spending time in emergency shelters. DCYF’s reliance on shelter placements results in multiple short-term placements, even for young children who suffer the most from this instability. Although emergency shelters are designed to be temporary placements lasting no more than 90 days, DCYF frequency exceeds this maximum, leaving children in emergency shelters for extended periods of time that can last a year or more. For example, Named Plaintiff David spent three months in a shelter when he was just four years old, and Named Plaintiff Cassie’s sister spent over nine months in two shelters when she was six years old. Shelters are rarely, if ever, appropriate placements for children. They are not safe, nurturing, or healthy environments. Furthermore, it is far more expensive to maintain children in shelters than to maintain them with foster families.
138. Absent circumstances where children require specialized care, institutions do not meet children’s developmental and emotional needs and can cause them trauma. Institutions are particularly damaging to infants and young children, causing a variety of harms, including: delayed language development; poor mental development and adaptive skills; an
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increased risk of serious infectious illness; less stability; lower rates of adoption; and a greater likelihood of remaining in care.
139. Yet DCYF routinely places large numbers of infants and young children in institutions. In FY 2004, the last period for which data are available, DCYF placed 18.9 percent of children in its custody below the age of 12 in group and institutional settings, more than twice the national median of 8.3 percent in 2003, the last period for which data are available. Although even temporary placements in such settings are harmful to young children, it is not uncommon for young children in Rhode Island’s foster care system to spend long stretches of time in group placements, such as Named Plaintiff Terrence, who lived in a residential treatment center from age six to age 12, four years longer than was therapeutically indicated. One four-year-old girl who was put in a group home for a 90-day placement ultimately spent a year in that facility before she was transferred to a therapeutic placement.
140. Paradoxically, suitable institutional settings for those children who could benefit from congregate care are often unavailable when needed. For example, the Rhode Island Supreme Court has recognized “the chronic shortage of adequate juvenile residential ‘step-down’ alternatives to psychiatric hospitalization.” In re Stephanie B., 826 A.2d 985, 990 (R.I. 2003). As the Court noted, DCYF has admitted to keeping children, such as Named Plaintiff David, hospitalized in mental health institutions even when medically unnecessary because it lacked suitable residential placements. Unnecessary confinement to a psychiatric hospital is dangerous and harmful to anyone, particularly a child.
3. Defendants Send Children in Foster Care Far from Their Homes and Communities
141. Both reasonable professional standards and DCYF policy require that children in foster care whose permanency goal is reunification be placed near their homes.
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Removal from home and placement in foster care is inherently traumatic for children. Living in one’s neighborhood minimizes that trauma by helping children maintain ties with parents and siblings and by avoiding unnecessary separation from friends, school, and local supports.
142. Nevertheless, DCYF sends most children in foster care to live in placements that are distant from their homes, schools, and communities. As of June 12, 2007, at least 47.71 percent of children in foster care were living in placements outside their home region. Though some children are placed out of their home region so they can live with relatives elsewhere in the state, the prevalence of out-of-region placements is directly tied to DCYF’s failure to recruit and retain a sufficient array of suitable placements throughout the state. One child, whose family is already having difficulty visiting him in a remote in-state placement, was moved to an out-of-state facility because there is no facility in Rhode Island that can provide the required services.
143. Additionally, DCYF assigns caseworkers to children based on the region in which the children lived prior to entering foster care, not based on the region in which they are placed. As a result, many caseworkers are responsible for children who are placed in remote areas of the state. The need for caseworkers to travel to other regions to perform in-home visits, combined with their already unmanageable caseloads, means that many caseworkers cannot make the in-home visits necessary to ensure that children are safe and that their needs are being met. This leaves children who are placed remotely at even greater risk of being abused, neglected, or languishing in care without having their needs met.
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4. Because Children Are Placed in Inappropriate Homes and Institutions, Their Placements Frequently Disrupt, and Children Deteriorate as They Are Moved from Place to Place
144. Reasonable professional standards provide that children in foster care should not be moved from one foster home or facility to another unless moving is in their best interests. Unnecessary moves increase the instability in the lives of children in foster care, often leading to attachment problems, defiance, and other mental health issues due to feelings of loss, rejection, and trauma. Research has shown that placement instability has a significant impact on children's behavioral well-being, in addition to the impact of the trauma caused by suffering abuse and neglect and being placed into foster care. For this reason, reasonable professional standards provide that agency staff, foster parents, and others involved in a child’s care should “work actively to achieve stability of care with the foster family. . . . Proactive efforts should continually promote stability and avoid disruptions in foster care.”
145. Children in Rhode Island foster care routinely experience multiple placements during their stays in state custody, largely because of inappropriate placements and Defendants’ failure to deliver necessary services to support children in their placements. The 2004 federal review concluded that placement stability in Rhode Island was the area of “greatest concern.” The CFSR found that during the review period, 31 percent of children whose cases were reviewed experienced multiple placement moves that were not in their best interests.
146. More recently, DCYF shuffles children from place to place, with even greater frequency. In FFY 2006, 14 percent of the 2,153 children who had been in out-of-home care for less than 12 months had already experienced three or more placements. Of those children who had been in care between 12 and 23 months, 33 percent had gone through three or more placements. And of those children who had been in care for more than 24 months, 67
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percent had experienced three or more placements. According to DCYF, fully 24.2 percent of children in foster care experienced three or more placements during the 12 months leading up to March 31, 2006. Put another way, only 75.8 percent of foster children had two or fewer placements within the previous 12 months, far short of the national benchmark of at least 86.7 percent.
147. Although these data do not specify how many placements children experience beyond three, children often suffer far more than three placements during their time in foster care. One child had 15 placements over the course of only two years, with six occurring in a single 16-day period. Named Plaintiffs Alex and Jared have each experienced at least six placements in less than six years in foster care, and, in her 10 years in foster care, Named Plaintiff Tracy has been moved at least 18 times through at least 13 placements. There is a growing pool of two- and three-year-old children in foster care who are living in shelters and have already been through multiple placements, in some cases multiple adoptive placements, in their short lives.
148. The longer children remain in DCYF foster care, the more moves and disruptions they experience. These moves are directly due to Defendants’ acts and omissions in failing to develop an adequate placement array, placing children in the first available bed rather than exercising reasonable professional judgment by basing placement decisions on the best interests of the children, and failing to assess children’s needs and to deliver services to meet those needs.
149. Defendants’ failure to provide placement stability to the children in their care causes harm to those children. Each new placement creates or exacerbates emotional trauma for children and results in behavioral, developmental, intellectual, and attachment
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problems. Moving children through multiple homes and institutions also often disrupts their education by forcing them to move to new schools. It frays the ties between children in foster care and their parents and siblings, friends, and community.
5. Defendants Separate Siblings in Foster Care Because They Have Failed to Develop an Adequate Placement Array
150. Both reasonable professional standards and DCYF policy emphasize the importance of keeping siblings together when they are taken into foster care, unless one or more of the children has a serious need that justifies separation. Separating siblings should be the exception, not the rule.
151. However, the 2004 federal review found that in 25 percent of cases DCYF had failed to place children in foster care with all of their siblings when separation was not warranted by the individual children’s safety or treatment needs. In some cases, sibling separation was “due to the agency not making concerted efforts to ensure that sufficient placement resources are available to accommodate siblings.” In other cases, “insufficient efforts were made to ensure that siblings remained together.” One child who entered care at age two with his two brothers has been separated from them during the entire twelve years they have been in DCYF custody. Named Plaintiffs Cassie, Alex, Jared, Terrence and Danny have all been separated from their siblings.
152. DCYF’s practice of separating siblings who do not need to be separated results in needless harm to children. Sibling relationships are often the main source of stability in the life of a child in foster care and can be essential to minimizing the lasting ill effects of a child’s time in state custody.
153. Defendants compound the harm of sibling separation by failing to ensure that siblings who are not placed together at least have regular and frequent visits with one
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another. The CFSR concluded that “DCYF does not make sufficient efforts to ensure that . . . visitation between children and their parents and siblings in foster care is of sufficient frequency . . . [or that] children’s connections to their families are preserved.”
C. Defendants Fail in Their Duty to Meet Plaintiff Children’s Service Needs 1. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Assessments or Case Plans 154. When DCYF takes a child into foster care custody, it assumes a duty to
provide services to meet the child’s basic needs, including his or her educational, medical, dental, and mental health needs. DCYF’s failure to provide services that meet the needs of Plaintiff Children results in very real harm to those children.
155. A critical first step in providing the services to meet an individual child’s basic needs is for a caseworker, in consultation with the child’s parents and other knowledgeable individuals, to prepare a case plan that identifies the child’s needs and permanency goal and that specifies the services that will be provided in order to meet those needs and achieve that goal. Federal law and DCYF policy both require that a case plan be timely prepared and that it include a description of the service requirements that have been identified for the child.
156. Nevertheless, DCYF does not have a system in place to assure the timely preparation of appropriate case plans. As of June 12, 2007, over 36 percent of the children managed by a Region II caseworker had either an expired case plan or no case plan at all. The figures for children in Regions I, III, and IV were 24.59 percent, 23.77 percent, and 21.46 percent, respectively. And even when case plans are timely prepared or updated, key players are often excluded from the planning process. For example, the 2004 CFSR found that DCYF fails to involve children (where appropriate) and parents in the case planning process.
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157. Instead of services being delivered to children in accordance with a properly formulated plan, children generally receive services, if at all, only in response to immediate crises. In a report issued on April 27, 2007, a DCYF Financial Review Team commissioned by then-Rhode Island Governor Donald Carcieri commented that services “appear to be extremely reactive,” with decisions about the provision of services “made on [the basis of] availability.” “Often the exigencies of the day compel the practicum of ‘placement equals treatment,’” the Financial Review Team reported. When service needs are identified, children are often put on waiting lists without regard to the urgency of their needs, because of Defendants’ failure to develop an adequate service array for these children.
158. Because DCYF fails in its duty to identify the individual needs of children in state foster care custody and fails in its duty to provide services that meet those needs, children do not get their physical, dental, mental health, and educational needs met. Due to the basic nature of these needs, the damage to children is often irreversible.
2. Defendants Violate Plaintiff Children’s Rights to Timely and Safe Reunification with Their Families When Reunification Is Appropriate
159. Reasonable professional standards require that child welfare agencies pursue reunification as the first and preferred permanency outcome for the children they place in foster care. Where safe reunification is a reasonable possibility, DCYF is required to develop and implement a case plan and a family services plan for each child and family in order to achieve family reintegration as soon as reasonably possible.
160. DCYF does not meet its obligation to facilitate appropriate and timely reunifications. The 2004 Child and Family Services Review found that only 66.2 percent of children who were reunified with their parents had achieved reunification within 12 months of initial removal, compared to the national norm of at least 76.2 percent.
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161. The chronic failure of DCYF to achieve timely and appropriate reunifications is the direct result of a combination of known and preventable shortcomings. First, DCYF fails to exercise reasonable professional judgment in deciding whether it is appropriate and in the individual child’s best interests to attempt reunification in the first place. Second, DCYF fails to make timely and appropriate assessments of the services children and families will need in order for reunification to succeed. Third, basic reunification support services for parents, such as parenting classes and substance abuse counseling and treatment, are in short supply and often subject to long waiting lists. Fourth, even when reunification support services are provided, they typically begin only after the child has already been returned to the home; little or nothing is done to create the conditions for successful reunification in advance of the child’s return home. Fifth, the services, even when provided, are inadequate to sufficiently support parents with the demands and stresses of parenting emotionally and behaviorally challenged children. And finally, high worker caseloads preclude the regular parent-child visits needed to support the reunification process, since visits must generally be arranged and supervised by a caseworker.
162. Reasonable social work practice and DCYF policy require that regular visits between parents and their children in foster care occur in order to successfully reunify the parent and child. DCYF requires parent-child visits to occur once every two weeks, unless specific exceptions relating to the safety and well-being of the child apply. However, as of June 12, 2007, in Region II, only 24.69 percent of children had seen their parent or parents within the preceding 30 days. In Regions I, III, and IV, the numbers were 39.66 percent, 46.20 percent, and 40.41 percent, respectively. These low rates of visitation are partly the consequence of DCYF’s practice of routinely placing Plaintiff Children outside their home region. Out-of-region foster
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care placements make it extraordinarily difficult for many biological parents to visit regularly with their children and to sustain the connections on which successful reunification depends.
163. When parent-child visits do occur, they often take place without DCYF supervision, even where required. DCYF’s failure to supervise parent-child visits when such supervision is mandated poses unacceptable risks for the children that DCYF is duty-bound to protect.
164. DCYF also fails to determine what services are necessary to support safe reunification and then fails to provide those services. This sets families up for failure, subjects children to additional abuse or neglect by parents who are unprepared for reunification, and results in children being removed again and placed back in state foster care custody.
3. Defendants Violate Plaintiff Children’s Rights to Permanency by Pursuing Reunification with Parents When Not Appropriate
165. As a matter of practice, DCYF usually does not consider alternatives to reunification for at least the first 15 months that a child spends in foster care custody, regardless of whether reunification is an appropriate goal for the individual child. Often DCYF maintains the goal of reunification for children for significantly longer periods of time. In one instance, a child who entered foster care less than a month after birth remained in foster care for almost three years because DCYF refused to seek a permanent adoptive home for the child, notwithstanding the clear unwillingness of the child’s parents to take the child back. Another child’s permanency goal remains reunification, even though she has lived in a foster home for 8 years and is now 10 years old.
166. One principal reason why children in Rhode Island remain in foster care for many years with the nominal goal of reunification is that Defendants allow parents to be noncompliant or minimally compliant with reunification case plans for years, even in the face of
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obvious evidence that parents will never complete their case plans and will never be able to handle the responsibilities of parenting. Defendants do not abandon the ostensible goal of reunification even in cases where the parents’ rights to their multiple other children have already been terminated, such as in the case of Named Plaintiffs Alex, Jared and David; where the parents do not visit their children, such as in the case of Named Plaintiff Danny; and where the parents have made no discernible effort to complete the requirements of their reunification plans, such as in the case of Named Plaintiffs Alex and Jared.
167. DCYF frequently returns children home even when it is not in that child’s best interest to do so, in part because of the scarcity of foster homes in the state.
168. Inappropriate reunification is unsafe and is likely to be unsuccessful, often leading to another removal of the child from his or her home. One girl was reunified with her abusive mother five times, each time suffering a new episode of physical abuse, followed by another removal.
169. Of the children who DCYF removed into foster care between April 1, 2005, and March 31, 2006, fully 15.2 percent had been in foster care within the 12 months prior to their removal. This 12-month re-entry rate—nearly twice the national standard of 8.6 percent set by the federal government—is concrete evidence of the systemic pattern of poor DCYF decisionmaking with regard to whether a family is ready and able to keep a child who will be reunified safe and well. DCYF returns children to their parents in cases where it is clearly inappropriate and dangerous to do so.
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4. Defendants Fail to Timely Place Children Who Cannot Return Home with Permanent Adoptive Families, Allowing Them Instead to Languish in Foster Care
170. Reasonable professional standards emphasize that the primary purpose of foster care is to provide children with protection, care, and nurturing for a limited period of time only. By definition, foster care should be a temporary arrangement. Reasonable professional standards and federal law both require that when children in foster care cannot be safely reunited with their parents, they must be freed for adoption without delay and not left lingering in foster care indefinitely. Federal law requires child welfare agencies to file a petition to terminate the parental rights of a child’s parents, and to concurrently pursue the goal of adoption, if the child has been in state foster care custody for 15 of the most recent 22 months, unless certain exceptions are documented.
171. Indeed, then-DCYF Director Patricia Martinez told the Rhode Island Senate Committee on Health and Human Services on December 13, 2006, “It’s a moral responsibility of us in the Department” to develop alternative permanency plans for children who cannot be reunified with their parents. Former Director Martinez conceded: “Children are staying in the system too long. . . . Many of these children don’t go home.”
172. For children to be adopted, prospective adoptive parents must be recruited, screened, trained, and licensed. DCYF’s efforts in all these areas are deficient and ineffective. For example, DCYF placed a moratorium on trainings for prospective adoptive parents in 2007. Thus, even when DCYF recruits people interested in adopting children in its custody, its failure to follow through with training and licensing in a timely manner negates its success in recruitment.
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173. Adoptions are also prevented or hindered by DCYF’s failure to provide an adequate adoption subsidy for children with special needs, as required by Rhode Island law. Under federal law, adoption subsidies may not exceed the child’s monthly foster care maintenance payment at the time of the adoptive placement. DCYF at times reduces the foster care maintenance payment for children living with families that are ready to adopt them, in order to reduce or eliminate the adoption subsidy after adoption is finalized. Often, the failure to provide an adoption subsidy makes the adoption unfeasible for the family and sets the child up for another failed placement and further instability.
174. Adoptions are also delayed because DCYF fails to finalize adoptions in a timely manner. It is common to wait many months just for the “home study” of an adoptive home to take place. One adoption was not finalized for three years, long after the child had been freed for adoption.
175. Further delays result from Defendants’ failure to engage in concurrent planning, the process of searching for potential adoptive families while simultaneously working towards family reunification, as required by federal law and reasonable professional judgment. DCYF’s continued pursuit of reunification for families even after it has become obviously inappropriate delays children from moving to permanent homes, and this delay is only exacerbated by DCYF’s failure to plan for adoption concurrently.
176. Defendants have not effectively trained caseworkers to implement adoption policies. Even when DCYF caseworkers follow procedure and make sure that a child has been freed for adoption, they often fail to refer the child to the Adoption Unit, effectively putting the child in limbo until the case is rediscovered, often months later.
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177. Because of all these systemic failings, children who cannot be safely reunited with their families commonly spend years in foster care without DCYF making any progress toward finding a safe and appropriate adoptive home for them. Eventually DCYF disclaims its responsibility to find permanent homes for them by declaring that they have been in care for too long to be “adoptable,” such as with Named Plaintiff David. Rather than pursuing individualized adoption strategies for these children, DCYF leaves them to languish in foster care.
5. Defendants Violate Plaintiff Children’s Health Care Rights 178. By taking Plaintiff Children into foster care custody, Defendants assume the duty to provide for their medical, dental, and mental health needs. Despite this clear duty, the 2004 CFSR concluded that “DCYF was not consistently effective in meeting children’s physical and mental health needs.” In nearly a quarter of applicable cases, DCYF had not made concerted efforts to address children’s physical health needs. DCYF’s failure to address children’s mental health needs was even starker: “in 39 percent of the applicable cases, reviewers determined that DCYF had not made concerted efforts to address the mental health needs of children.” The CFSR Final Report noted “particular concern” with respect to the mental health needs of children, finding that DCYF often “did not respond appropriately in situations in which presenting or underlying issues warranted a mental health assessment and/or mental health services.” 179. As victims of abuse or neglect, children entering foster care often have experienced significant trauma, resulting in physical, emotional, or behavioral issues that require medical or mental health treatment. Thus, reasonable professional standards require initial health screenings for all children when they enter foster care. Those screenings should include
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assessments of mental health issues that are common among children in foster care, including depression, risk of suicide, severe behavioral problems, serious emotional disturbance, and substance abuse. Reasonable professional standards also require that each child have a service plan that includes treatment for any conditions diagnosed in these assessments and that access to such treatment is assured.
180. Although Defendants have made efforts to build a medical care infrastructure that will meet the needs of all Plaintiff Children, including the enrollment of children in foster care in the state’s managed-care program, RIte Care, insufficient coordination and integration among children’s health services and family preservation programs, poor case planning, and poor worker visitation render these efforts ineffective for many children.
181. For example, the “Baseline Oral Health Indicators” report prepared for the Rhode Island State Action for Oral Health Access Project in April 2005 determined that, “of the approximately 889 children ages 3 and over who were living in licensed foster homes and who had RIte Care coverage in 2004, 714 (80.3 percent) were reported by their foster parents to have needed dental care” and “239 (33.5 percent) of these children had problems obtaining dental care.” Rhode Island dentists commonly refuse the fee-for-service Medicaid and RIte Smiles dental coverage that DCYF provides to children in its foster care custody. Defendants’ systematic failure to ensure that children in foster care have their dental needs met is the direct result of Defendants’ actions and inactions in failing to develop an adequate array of dental service providers.
182. The need for mental health services for children in DCYF foster care custody is particularly great. “There has never been a time when more kids had mental health needs that need to be addressed,” Associate Justice Michael B. Forte of the Rhode Island Family
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Court told the Rhode Island House Finance Committee on April 4, 2007, during hearings on the FY 2008 budget for DCYF. “Numerous studies and recommendations have called on the department [DCYF] to institute a better coordinated and managed approach to the behavioral health needs of children,” the Rhode Island Senate declared in a March 22, 2007, resolution. This resolution came almost three years after the federal review that found that Rhode Island was not making concerted efforts to meet the mental health needs of children in foster care. That need continues to go unaddressed due to Defendants’ actions and inactions in failing to develop an adequate array of mental health providers who will treat children in foster care throughout Rhode Island.
183. The absence of an adequate mental and behavioral health delivery system for Rhode Island’s foster care population was well-documented in the “Rhode Island Mental Health National Outcome Measures” for 2005, issued by the federal Center for Mental Health Services. That year, only 148 children residing in family foster homes and 125 children residing in institutions received state-supplied mental health services. These low figures, the most recent available, mean that DCYF regularly fails to meet the serious and pervasive mental health needs of the children in its foster care custody. For example, one 15-year-old Plaintiff Child who is slightly mentally retarded never received any mental health counseling after she was sexually molested by her stepfather. Two years later, she was sexually reactive. Although she has not received any therapeutic treatment for these problems, DCYF plans to reunify her with her biological father and five brothers. Other children, such as Named Plaintiffs Terrence, Tracy and Danny, deteriorate while in care because of DCYF’s failure to provide adequate mental health services.
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184. Foster parents report that DCYF is unresponsive to their efforts to obtain necessary mental and physical health care services for the children they foster, encountering such resistance and even hostility from DCYF that they have begun to fear retaliation if they do not limit their demands on behalf of the children they foster. The failure of DCYF to provide needed medical and mental health care for Plaintiff Children sometimes leads foster parents to go outside the system in an attempt to obtain those services on their own for the children they foster. When DCYF refused one foster parent’s request for an evaluation of a Plaintiff Child with autistic tendencies, the foster parent had to obtain an independent evaluation of the child. That outside evaluation led to a diagnosis of Asperger Syndrome.
185. DCYF also fails to make sure that Plaintiff Children’s medical records follow them from place to place and fails to inform foster parents about the mental health and other medical histories of the children they foster. As a result, caregivers are unable to help ensure that the needs of children in foster care are met. Failing to inform foster parents about mental health issues, particularly those due to a child’s having been sexually abused or involving a child’s propensity for violence, also puts children in foster care and members of foster families at risk.
D. Defendants’ Mismanagement of Rhode Island’s Foster Care System Harms Plaintiff Children 1. Defendants Assign Excessive Caseloads to Caseworkers, Making It Impossible for the Caseworkers to Ensure That Children Are Safe and Having Their Needs Met 186. No child welfare system can perform its basic functions without a well-
trained, substantially experienced, adequately staffed, and appropriately evaluated workforce. When, as is the case in Rhode Island, caseworkers are inadequately trained, experienced, reviewed, or supervised, or when they are overburdened by unmanageable caseloads, a child
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welfare system predictably breaks down and children suffer reasonably foreseeable harms as a result.
187. Because of the vital role played by caseworkers, reasonable professional standards prescribe caseloads of between 12 and 15 children per worker for foster care services and between 10 and 12 children per worker for adoption services. Reasonable professional standards also prescribe supervisory ratios of one supervisor for every five caseworkers.
188. In disregard of these reasonable professional standards, DCYF policy sets the target caseload cap at 14 families (each of which may have more than one child) per worker for foster care services, with an absolute maximum of 28 children—nearly twice the professional standard. In practice, however, DCYF caseworkers consistently carry caseloads well in excess of 14 families or 28 children. Currently, individual caseloads for foster care workers greatly vary in size, with many exceeding 30 children and some even exceeding 40 children.
189. Caseworkers carry such unmanageable caseloads simply because Defendants do not employ enough caseworkers to adequately serve all the children that DCYF takes into foster care custody. This has been clear for years. In its 2003 Statewide Assessment, DCYF admitted that “[t]he current level of vacancies across all line staff positions is the most severe that the Department has experienced for many years. As we seek to comply with [applicable] performance measures to achieve conformity, we will be hard pressed to change existing practices and/or implement new practice with an already overburdened staff.”
190. On December 13, 2006, then-DCYF Director Martinez acknowledged in testimony to the Rhode Island Senate Health and Human Services Committee, that DCYF faces staff shortages and high turnover among its child welfare caseworkers. Former Director Martinez further advised the committee that 31 caseworker positions had been eliminated by the
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General Assembly in the FY 2007 budget cycle. She also told the committee that 37 social caseworkers had left DCYF since July 2006.
191. At times, the turnover rate among caseworkers has been as high as 40 percent. High caseworker turnover requires those remaining on staff to carry additional cases on their already overflowing caseloads to cover for the vacancies. A rapid exodus of caseworkers in Region IV recently has meant that caseworkers in Regions II and III have had to take over the cases of Plaintiff Children in Region IV. Assigning the cases of children in foster care in one region to overburdened caseworkers in another part of the state makes it that much more difficult for those children to receive caseworker visits and have their needs met.
192. Caseworkers are demoralized and frustrated by their inability to do their job because of staggering caseloads and endless paperwork. “The reality is that as the situation stands now, even if one is good at this work, it is impossible to do well. When you cannot do this job well, children and their families suffer,” DCYF caseworker Pamela McElroy told the Rhode Island Senate Health and Human Services Committee in December 2006. McElroy told the committee that after six years she had decided to leave her job at DCYF because of her heavy caseload. “The constant feeling that I am letting families down and that there is no relief in sight is my breaking point,” she said. Former DCYF caseworker John Campopiano expressed similar frustrations in a televised interview on February 25, 2007, and stated that “it’s absolutely impossible” to perform proper quality casework at existing DCYF caseload levels. Mr. Campopiano carried a caseload of 40 families—and far more individual children—before recently resigning his position out of frustration and burnout.
193. In a November 6, 2006 letter to then-DCYF Director Martinez, 42 supervisors from the DCYF Family Services Unit—the unit charged with providing social
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services and case management for children in foster care—warned that caseloads in their unit were rising so rapidly that they feared for the safety of children in DCYF foster care custody. The 42 signatories told former Director Martinez that it was “imperative” that she immediately fill all social caseworker vacancies and restore Family Services Unit positions that had been eliminated.
194. Thereafter, on November 22, 2006, then-Governor Carcieri received a letter from the Rhode Island Children’s Policy Coalition2 that made reference to the above November 6, 2006, letter to former Director Martinez, stating, “[i]t is an extraordinary indicator of the depth of the problems and the lack of progress at [DCYF] that supervisory staff feel compelled to collectively put into writing their concern for the safety of the children being served by the Department.” The letter urged the former governor “to make child safety a priority by taking whatever steps are necessary within the state personnel system to insure that staffing at [DCYF] is adequate and vacancies filled in a timely manner.”
195. Despite the urgent need to restore the caseworker positions that have been eliminated and to hire new caseworkers in order to bring caseloads down to manageable levels, Defendants failed to seek funding for a single additional caseworker position in their FY 2008 budget requests.
2. Caseworkers Fail to Make Required Child Visits 196. Regular caseworker visits are necessary for checking on a child’s safety and well-being, identifying the child’s needs, and arranging and monitoring the delivery of services to meet those needs. That is why DCYF policy requires the caseworkers to meet “face-to-
2 The Children’s Policy Coalition is a child welfare policy and advocacy organization whose membership includes almost every significant private child placing agency and children’s services provider in Rhode Island.
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face. . . at least monthly” with the Plaintiff Children on their caseloads and with those children’s caregivers, and to visit foster homes at least monthly.
197. Nevertheless, the 2004 Child and Family Services Review found that fully 39 percent of children in Rhode Island’s foster care system were not receiving adequate face-toface visits from their caseworkers. Recent data show that this problem has considerably worsened. As of June 12, 2007, 75.31 percent of children in Region II had not received face-toface caseworker visits within the last 30 days. The figures for children in Regions I, III, and IV were 60.34 percent, 53.8 percent, and 59.59 percent, respectively. Statewide, 60.94 percent of all children in foster care had not received a face-to-face caseworker visit within the last 30 days.
198. Worse still, as of June 12, 2007, 43.28 percent of Plaintiff Children in Region II had not had a caseworker visit within the last 90 days. On this measure, the figures for children in Regions I, III, and IV were 34.87 percent, 25.23 percent, and 27.25 percent. Statewide, 31.75 percent of all children in foster care had not received a face-to-face caseworker visit within the last 90 days.
199. As bad as they are, these percentages do not tell the whole story. One child had only a single visit with his DCYF caseworker during a three-year period. Named Plaintiff David had only one visit annually with his caseworker during 2004 and 2005, and only 10 visits during the previous three years. Some foster parents report that they have not seen a caseworker in over a year. When caseworkers do visit children in foster care, it is often because the foster parents request the visits and drive the children to a designated meeting place, rather than the caseworkers initiating the visits and going to the foster homes themselves. Foster parents report experiencing great difficulty contacting DCYF caseworkers. Caseworkers do not answer their
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telephones or return calls and their voicemail boxes are frequently full, unable to accept more messages.
200. With such low caseworker-child visitation rates, it is simply impossible for DCYF to ensure that the children in its foster care custody are safe and that their basic needs are being met. Indeed, as the persistently high rates of abuse in care show, children in foster care in Rhode Island are not safe. Nor are their basic needs for things such as mental health care consistently met. The harmful and dangerous situation in which children in foster care find themselves is the direct result of DCYF’s failure to ensure that caseworkers regularly visit them.
3. The DCYF Licensing Unit Fails Applicable Standards, Resulting in a Chronic Shortage of Licensed Placements and Providers
201. DCYF has established a Licensing Unit charged with (1) processing applications submitted by prospective foster parents and foster care providers seeking licensure to furnish foster care services in Rhode Island, (2) ensuring that DCYF-licensed family foster homes, group homes, and institutions where children are placed for foster care services comply with minimum state safety requirements, and (3) responding to reports of licensure or regulatory violations involving DCYF-authorized family foster homes, group homes, or institutions.
202. Rhode Island statute provides that no non-kin foster care provider may furnish care for a child without holding a valid, current license. To secure a license in Rhode Island, the foster care provider must satisfy a set of mandatory eligibility requirements that include undergoing a criminal background check, a home safety study, training and orientation as a caretaker, and a medical clearance.
203. To be caregivers of children in DCYF custody, relatives must be certified, which involves meeting essentially the same standards as required to be a licensed foster parent. Yet in the aftermath of T.J. Wright’s death in 2005, a DCYF official candidly admitted that
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“[i]t’s not uncommon to see a child placed in the care of relatives while the licensing [i.e., certification] process is ongoing.” The dangerous practice of placing children in relative homes while certification is pending continues. For example, Named Plaintiff Danny was placed in the unlicensed home of his great-grandmother, without DCYF conducting a safety and background check.
204. A properly administered licensing process would enable DCYF to screen out potentially unsafe or unsuitable foster care providers. However, the DCYF licensing workforce is inadequately trained, severely understaffed, and responsible for onerous caseloads. There are only six full-time licensing caseworkers in the Licensing Unit, and they are responsible for all aspects of foster care as well as day care licensing throughout the state. The caseworkers carry caseloads regularly exceeding 200 cases per worker. As a result, the licensing process for a non-kin foster home currently takes more than a year.
205. The licensing staff maintains a chronic backlog of hundreds of license applications. This backlog exists even though DCYF does not have enough foster homes to meet current needs. The backlog persists not only because the Licensing Unit is understaffed but also because Licensing Unit workers are not subject to any system of worker accountability. Because these workers are not subject to performance reviews, they are under no meaningful pressure to catch up with the licensure backlog.
206. As of March 2007, the Licensing Unit had a backlog of 423 licensing applications, most of which—295—were for homes that had children in foster care living in them despite their unlicensed status. This means approximately 10 percent of all children in DCYF foster care custody were living in unlicensed homes. In May 2007, 233 children in DCYF foster care custody were living in 164 unlicensed foster homes. Placing hundreds of
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children in unlicensed homes is not only a departure from the established licensing process in Rhode Island and from basic notions of good practice, it constitutes a fundamental failure to assure children’s safety.
207. The Licensing Unit is also charged with the licensure of the child placing agencies with which DCYF contracts for the provision of foster care services and placements such as independent living arrangements, supervised apartment living, residential group care facilities, family foster homes, and adoptive homes. As of June 12, 2007, only 69 percent of the child placing agencies in Rhode Island had active licenses; the rest had expired or pending licenses. By continuing to use child placing agencies that are not properly licensed, DCYF exposes children in foster care to unnecessary and unacceptable risks.
208. DCYF also does not provide the oversight necessary to ensure that licensed homes remain safe and appropriate for children. In the case of one foster home from which DCYF had previously removed Plaintiff Children, when the foster parent began experiencing mental health problems and refused to make use of available services for Plaintiff Children, DCYF did not revoke the foster parent’s license. Instead, DCYF simply reduced the allowable number of children in the home from three to two, and subsequently placed two children in that home.
E. Defendants’ Fiscal Mismanagement of the Child Welfare System Harms Children 209. DCYF is required by state law to seek, accept, and take advantage of all
available federal aid. Nevertheless, Defendants fail to take advantage of available federal funding for foster care, leaving the child welfare system needlessly underfunded. Defendants then spend too much of Rhode Island’s limited child welfare funds on expensive institutional placements for children who do not need institutionalization, while at the same time inadequately
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reimbursing the foster parents who provide the family placements that most children in foster care need. This fiscal mismanagement results in harm to Plaintiff Children.
1. Defendants Forfeit Available Federal Funds 210. Defendants forfeit millions of dollars in federal matching funds by failing to collect Title IV-E funds for eligible children.3 Rhode Island is entitled to receive federal dollars to offset the costs of maintaining abused and neglected children in foster care, as long as the state complies with certain requirements. One requirement that Defendants routinely fail to meet is ensuring that children are placed in licensed foster care settings. Then-Governor Carcieri admitted in his FY 2008 budget proposal for DCYF that the State would forfeit $1.5 million in federal funds for the coming year simply because of Defendants’ widespread use of unlicensed placements. This forfeiture of available federal funding is one reason why Rhode Island’s child welfare system is underfunded and unable to protect children in foster care or provide for their basic needs. 211. In FFY 2000, Rhode Island received Title IV-E reimbursements for 31.9 percent of the children in DCYF foster care custody. By FFY 2004, the last year for which data are available, that figure had fallen to only 16.8 percent. In contrast, the national mean that same year was 46.43 percent. 2. Defendants Waste Limited Funds on Harmful, Costly Institutional
Placements 212. DCYF makes excessive use of expensive placements such as institutions, group homes, and emergency shelters for children who do not need them, rather than developing and supporting an adequate array of appropriate foster homes and specialized foster homes, such
3 To receive federal funding under Titles IV-B and IV-E of the Social Security Act, Rhode Island has entered into contracts with the federal government, known as “State Plans,” under which the State agrees to provide child welfare, foster care, and adoption services to children in foster care in accordance with specific state and federal statutes, regulations, and policies as a condition for receiving federal funds.
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as therapeutic, behavioral, or medical foster homes. Institutional placements are inappropriate for all children except the minority of children who have special circumstances that are best addressed in an institutional setting. And shelters are categorically inappropriate placements for all children.
213. Not only do institutional placements harm children who do not need them, they are not cost effective. Most children are best cared for in standard foster homes, but those children whose special needs preclude placement in regular foster homes can often have their needs met in a family-like setting by therapeutic foster care providers for a fraction of the cost of institutional care. Therapeutic foster care providers in Rhode Island receive on average $123 per day, compared to an average daily cost of $245 per day for in-state institutional care and $353 for out-of-state institutional care.
214. Defendants’ reliance on institutional placements translates directly into fewer dollars available for ensuring that children in foster care are safe and that their needs are being met in the least restrictive, most family-like setting that is appropriate to their needs.
3. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents
215. To comply with federal law and reasonable professional standards, DCYF must pay maintenance payments to family foster care providers that cover the costs associated with caring for children in foster care, including “payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.” By these standards, the maintenance payments that Defendants pay foster parents are inadequate.
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216. The standard daily board rates paid to foster parents by DCYF are $14.39 for children up to 3 years of age, $13.64 for children between 4 and 11 years old, and $15.79 for children ages 12 and older. These rates are less than half what the United States Department of Agriculture estimates the average middle-income, two-parent family in the urban Northeast spent to care for children in 2006 (not including health care costs). The USDA estimates, for example, that such families spend $34.92 per day on 2-year-olds, $35.54 on 9-year-olds, and $38.83 on 16year-olds. If anything, the USDA underestimates the cost of caring for a child.
217. This disparity translates into harm and risk of harm to Plaintiff Children, since financially overburdened foster parents are less able to provide proper care. It also drives away potential foster parents, thus placing a greater burden on the limited array of foster family homes and contributing to the high rate of needless and harmful institutionalization of children in foster care. VIII. Causes of Action
First Cause of Action (Substantive Due Process Under the United States Constitution)
(Asserted by All Named Plaintiffs and Plaintiff Children) 218. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 219. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm when it takes that child into its foster care custody. 220. The foregoing actions and inactions of Defendants, in their official capacities, constitute a failure to meet the affirmative duty to protect from harm all Named Plaintiffs and class members, which is a substantial factor leading to, and proximate cause of, the
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violation of the constitutionally protected liberty and privacy interests of all Named Plaintiffs and class members.
221. The forgoing actions and inactions of Defendants, in their official capacities, constitute a policy, pattern, practice, or custom that is inconsistent with the exercise of reasonable professional judgment and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being harmed and deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
222. These substantive due process rights include, but are not limited to: the right to protection from unnecessary harm while in government custody; the right to a living environment that protects Plaintiff Children’s physical, mental, and emotional safety and wellbeing; the right to services necessary to prevent Plaintiff Children from deteriorating or being harmed physically, psychologically, or otherwise while in government custody, including but not limited to the right to safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning and services directed toward ensuring that the child can leave foster care and grow up in a permanent family, and adequate medical, dental, psychiatric, psychological, and educational services; the right to treatment and care consistent with the purpose of the assumption of custody by the Department of Children, Youth and Families; the right not to be maintained in custody longer than is necessary to accomplish the purposes of taking the child into custody; the right to receive care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; and the right to be placed in the least restrictive placement according to a Plaintiff Child’s needs.
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Second Cause of Action (Substantive Due Process Under the United States Constitution: State-Created Danger)
(Asserted by All Named Plaintiffs and Plaintiff Children) 223. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 224. Defendants’ acts of removing Plaintiff Children from their caretakers and placing them in placements that Defendants know or should know pose an imminent risk of harm to these children constitute to a policy, pattern, practice, or custom that is inconsistent with the exercise of professional judgment and that amounts deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. 42 U.S.C. § 1983. 225. Likewise, Defendants’ acts of returning Plaintiff Children to their parents when Defendants know or should know that doing so poses an imminent risk of harm to these children constitute to a policy, pattern, practice, or custom that is inconsistent with the exercise of professional judgment and that amounts deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members. 226. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being harmed and deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. 42 U.S.C. § 1983.
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Third Cause of Action (First, Ninth, and Fourteenth Amendments to the United States Constitution)
(Asserted by All Named Plaintiffs and Plaintiff Children) 227. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 228. The foregoing actions and inactions of the Defendants, in their official capacities, amount to a policy, pattern, practice, or custom of failing to exercise reasonable professional judgment and of deliberate indifference to Plaintiffs’ constitutional rights, and are the cause of the violation of such rights. As a result of Defendants’ conduct, all Named Plaintiffs and class members have been and are being severely harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a child-parent or a child-sibling family relationship, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
Fourth Cause of Action (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq.)
(Asserted by All Named Plaintiffs and Plaintiff Children) 229. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 230. As a result of the foregoing actions and omissions by Defendants, in their official capacities, Defendants are engaging in a policy, pattern, practice, or custom of depriving all Named Plaintiffs and class members of rights conferred on them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 670 et seq. (collectively the “Adoption Assistance Act”), and the regulations promulgated thereunder, 45 C.F.R. §§ 1355–57. These rights include: the right to timely written
77

Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 79 of 81 PageID #: 2477
case plans containing mandated elements and the right of each Plaintiff Child to foster care maintenance payments paid to the foster parents or foster care providers with whom the child is placed that cover the actual cost of (and the cost of providing) the Plaintiff Child’s food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family, and other expenses. 42 U.S.C. §§ 671(a)(1), 671(a) (11), 671(a)(16), 672(a)(1), 675(4)(A); 45 C.F.R. §§ 1355.20, 1356.21(f)-(g), 1356.21(m)(1). IX. Prayer for Relief
231. WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action; b. Order that Plaintiff Children may maintain this action as a class
action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure; c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of Civil Procedure: i. Defendants’ violation of Plaintiff Children’s rights under
the Substantive Due Process Clause of the Fourteenth Amendment to the United States Constitution; ii. Defendants’ violation of Plaintiff Children’s rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution; and iii. Defendants’ violation of Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights; e. Order appropriate remedial relief to ensure Defendants’ future compliance with their legal obligations to Plaintiff Children;
78

Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 80 of 81 PageID #: 2478
f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. §§ 1920 and 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
g. Grant such other and further equitable relief as the Court deems just, necessary and proper to protect Plaintiff Children from further harm by Defendants.
DATED: February 24, 2012
Respectfully Submitted:
/s/ Shirim Nothenberg MARCIA ROBINSON LOWRY (Bar No. 1187053 (NY);
admitted pro hac vice) SHIRIM NOTHENBERG (Bar No. 2871846 (NY);
admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: mlowry@childrensrights.org
JAMETTA O. ALSTON (Bar No. 3909) 9 Columbia Avenue Warwick, RI 02888 Phone: (401) 941-9595 Email: Jametta.Alston4@gmail.com
JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
JARED BOBROW (Bar No. 133712 (Cal.); admitted pro hac vice)
WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA Phone: (650) 802-3034 Facsimile: (650) 802-3100 Email: jared.bobrow@weil.com
79

Case 1:07-cv-00241-ML-LDA Document 115 Filed 02/24/12 Page 81 of 81 PageID #: 2479

CERTIFICATION OF FILING AND SERVICE

I hereby certify that on February 24, 2011, I electronically filed the foregoing document with the United States District Court for the District of Rhode Island, and it is available for viewing and downloading from the ECF system for all counsel of record. I further certify that on this day I caused to be served, via ECF and U.S. Mail, a copy of said document to the attorneys of record listed below:

Via ECF:

Via U.S. Mail:

James R. Lee, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 Fax: (401) 222-2995 jlee@riag.ri.gov

Jane Morgan, Esq. R.I. Department of Mental Health, Retardation and Hospitals Barry Hall 14 Harrington Rd. Cranston, RI 02920 Tel: (401) 462-6014 Fax: (401) 462-2330

Brenda D. Baum, Esq. Assistant Attorney General Rhode Island Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Tel: (401) 274-4400 x 2294 Fax: (401) 222-3016 bbaum@riag.ri.gov

Kevin Aucoin, Esq. DCYF Chief Legal Counsel 101 Friendship Street Providence, RI 02903-3716 Tel: (401) 528-3570 Kevin.Aucoin@dcyf.ri.gov

/s/ Shirim Nothenberg SHIRIM NOTHENBERG (Bar No. 2871846 (NY);
admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: snothenberg@childrensrights.org

80

 
 UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

CASSIE M., et al.

v.

CA 07-241 ML

LINCOLN D. CHAFEE, in his official capacity as Governor of the State of Rhode Island, et al.

ORDER

This matter is before the Court on Plaintiffs’ appeal from a Memorandum and Order of

Magistrate Judge Almond issued on December 17, 2012 (Docket #230). Since the Magistrate

Judge’s ruling pertains to non-dispositive matters, this Court is constrained to uphold his ruling

unless it is clearly erroneous and/or contrary to law. 28 U.S.C. 636(b)(1)(A).

This case has been pending in this Court for some time. As Magistrate Judge Almond

observed, Plaintiffs and Defendants have very different views of how the litigation shall proceed.

This Court and Magistrate Judge Almond have consistently and clearly conveyed to the parties

that, in the interest of judicial economy, the focus of the litigation at this point is on the claims of

the individual named Plaintiffs. Only after adjudication of dispositive motions as to those claims

will the Court consider certification of a class.

Accordingly, since the Magistrate Judge’s ruling is not clearly erroneous or contrary to

law, and because it is designed to promote resolution of the individual Plaintiffs’ claims, this

Court DENIES and DISMISSES Plaintiffs’ appeal.

SO ORDERED:
/s/ Mary M. Lisi Mary M. Lisi Chief United States District Judge February 12, 2013

 
 Case 1:07-cv-00241-ML-LDA Document 230 Filed 12/17/12 Page 1 of 3 PageID #: 6207

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

CASSIE M., et al.
v.
LINCOLN D. CHAFEE, et al.

:

:

:

C.A. No. 07-241ML

:

:

:

MEMORANDUM AND ORDER

Pending before the Court for determination (28 U.S.C. § 636(b)(1)(A)) is Defendants’ Motion for Protective Order regarding the scope and timing of fact discovery. (Document No. 177). Plaintiffs oppose the Motion. (Document No. 195). A hearing was held on November 20, 2012.
It is apparent from the parties’ arguments and submissions that they have a fundamental disagreement as to the present posture of this case and the appropriate scope of discovery. On March 20, 2012, Chief Judge Lisi advised the parties that she would not take up the issue of class certification1 until after she decided dispositive motions on the individual substantive claims of the named Plaintiffs. (Document No. 124 at p. 4). I am also informed that Chief Judge Lisi has made clear to the parties that these dispositive motions are intended to address whether the named Plaintiffs can present sufficient evidence, applying the standards applicable to Rule 56 motions, to establish a trial-worthy issue that their constitutional and/or statutory rights have been violated, and, if so, whether they have suffered any harm proximately caused by such violation(s).
Defendants contend that discovery at this stage of the case should be focused on the named

1 Plaintiffs argue that they are required by the Court’s Scheduling Order to complete all discovery, including class certification discovery, at this stage. However, it is clear that Chief Judge Lisi’s intent in deferring consideration of class certification until after ruling on dispositive motions was to bring order and efficiency to the processing of this complex case and only to proceed to the class certification issues if necessary. Thus, discovery on class certification issues is stayed until after the Court rules on dispositive motions.

Case 1:07-cv-00241-ML-LDA Document 230 Filed 12/17/12 Page 2 of 3 PageID #: 6208
Plaintiffs and, in particular, whether they have sustained an injury while in the State’s care which has been proximately caused by some violation of their constitutional and/or statutory rights by Defendants. (Document No. 217 at p. 3). They assert that the fundamental problem with this case is that “[t]here are broad sweeping allegations that are untethered to the children at this point.” Id. at p. 11. Plaintiffs counter that this focus would prohibit them from proving their claims at the summary judgment stage. Specifically, Plaintiffs argue that broader discovery is necessary to show that the challenged practices and policies expose the named Plaintiffs to an unreasonable risk of harm, as well as causing actual harm. Plaintiffs’ counsel indicated at the hearing that discovery extending to every child in the system would be “required” to prove such risk of harm claims. Plaintiffs contend that “[a]n unreasonable risk of harm can only be proved by looking at evidence beyond what has already happened to the named plaintiffs.” Id. at p. 19. At the hearing, I asked Plaintiff’s counsel whether the “unreasonable risk” argument would “open up discovery to every single child who’s in the system” and her response was “[w]e believe that’s what’s required here in order for us to prove our claims.” Id. at p. 20.
After weighing the parties’ arguments, considering Judge Lisi’s intent in entertaining dispositive motions on the individual claims of the named Plaintiffs and applying the principles embodied in Rule 26(b)(2)(C), I find that Defendants have sufficiently shown good cause under Rule 26(c) to focus discovery at this stage of the case to nonprivileged information that is relevant to the substantive claims of the individual named Plaintiffs and Defendants’ defenses to such claims. I also reject Plaintiffs’ argument at this stage that their “risk of harm” claims justify wide-ranging discovery of all children who have been in the legal custody of the Rhode Island child welfare system due to allegations of abuse or neglect. Plaintiffs have simply not shown that such limitless
-2-

Case 1:07-cv-00241-ML-LDA Document 230 Filed 12/17/12 Page 3 of 3 PageID #: 6209
and burdensome discovery is necessary to pursue the claims of the named Plaintiffs at this stage, or that a reasonable range of discovery focused on the named Plaintiffs and the various “system failures” alleged in this case (see Document No. 195 at p. 8) would not be sufficient to allow the Court to evaluate the evidence pursuant to Rule 56. Further, if, after reviewing Defendants’ summary judgment arguments, Plaintiffs contend that they have been denied access to discovery “essential to justify [their] opposition,” they would not be without remedy and could move for relief under Rule 56(d).
Thus, for the foregoing reasons, Defendants’ Motion for Protective Order (Document No. 177) is GRANTED and the scope of discovery is limited as provided herein. Further, in light of this ruling, Defendants’ additional request for document review cost shifting is DENIED as unwarranted. In addition, Defendants have not made a sufficient showing to warrant a blanket protective order prohibiting the production of any electronically stored information (“ESI”).2 If Defendants have a particular issue regarding the scope of a request for ESI, accessibility of ESI, or undue burden or cost in production of ESI, they may seek further relief under Rule 26(c) after conferring with Plaintiff’s counsel in a good faith effort to resolve the dispute without the necessity of court action.
/s/ Lincoln D. Almond LINCOLN D. ALMOND United States District Court December 17, 2012
2 Defendants have also not presently made a sufficient showing to limit discovery to the RICHIST data system and have not established that any reasonable search for responsive emails and other ESI related to the fifty-four caseworker/supervisor custodians who have had involvement with the named Plaintiffs would be “unreasonably cumulative or duplicative” within the meaning of Rule 26(b)(2)(C)(i).
-3-

 
 Case 1:07-cv-00241-ML-LDA Document 296 Filed 03/01/13 Page 1 of 4 PageID #: 8308

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

CASSIE M., et al. v.
LINCOLN D. CHAFEE, et al.

:

:

:

C.A. No. 07-241ML

:

:

MEMORANDUM AND ORDER

Pending before the Court for determination (28 U.S.C. § 636(b)(1)(A)) are Plaintiffs’ Second Motion to Compel (Document No. 178), Defendants’ First Motion to Compel (Document No. 182), Defendants’ Second Motion to Compel as to each Named Plaintiff (Document Nos. 225-229), and Defendants’ Third Motion to Compel as to each Named Plaintiff (Document Nos. 233-237).1 These Motions are related in that they all involve discovery requests aimed at learning the facts and circumstances supporting the claims and defenses made in this case. After reviewing the briefs and materials submitted, these Motions are resolved as follows:
A. Document No. 178 This dispute relates to discovery of the facts and circumstances supporting certain of Defendants’ Affirmative Defenses. In their Answer to Plaintiffs’ Second Amended Complaint, Defendants assert twenty-seven Affirmative Defenses. Plaintiffs subsequently served a set of Interrogatories on Defendants seeking the facts and circumstances supporting eleven of those Defenses (Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Thirteenth, Nineteenth and Twenty-fourth). After reviewing the Interrogatory Responses in dispute and the parties’ arguments,

1 On January 9, 2013, the Court issued a Discovery Management Order requiring the parties to confer in good faith in an effort to resolve or narrow the disputes presented in these and other pending discovery Motions. (Document No. 253). Although progress was reported on some of the other pending Motions, the parties reported that they were completely unable to resolve or narrow any of the issues raised in these twelve discovery Motions.

Case 1:07-cv-00241-ML-LDA Document 296 Filed 03/01/13 Page 2 of 4 PageID #: 8309
I conclude that Plaintiffs have not shown that Defendants’ detailed Responses to these Interrogatories are deficient and thus Plaintiffs’ Second Motion to Compel (Document No. 178) is DENIED subject to Defendants’ duty to supplement their Responses if further responsive “facts or circumstances” supporting their Affirmative Defenses are uncovered. See Fed. R. Civ. P. 26(e)(1)(A).
B. Document No. 182 Defendants move to compel each Named Plaintiff to provide full and complete Answers to Interrogatories 6 and 9 of Defendants’ First Set of Interrogatories. As to Interrogatory 6, Defendants seek more detail only as to paragraphs 109 through 116 of Plaintiffs’ Responses. Interrogatory 6 asks each Named Plaintiff to “[i]dentify all witnesses, in relation to each cause of action of the Second Amended Complaint, who have knowledge of any of the facts and circumstances provided in response to Interrogatories Nos. 2 through 5 and state the specific information to which each witness can testify.” Plaintiffs’ Responses include broad descriptions of certain general categories of witnesses, such as “perpetrators of, witnesses to and reporters of abuse and/or neglect...experienced by the Named Plaintiff,” which are followed by a list of individuals, who fall into each category, by name, and job title, occupation or relation to the Named Plaintiff. Plaintiffs’ responses are deficient because they fail to state the “specific information to which each witness can testify.” Accordingly, Defendants’ Motion is GRANTED as to paragraphs 109 through 116 of Plaintiffs’ Responses to Interrogatory 6. Within twenty-one days, Plaintiffs shall serve on Defendants supplemental answers to Interrogatory 6 which state the specific information about which each disclosed witness in paragraphs 109 through 116 can testify.
-2-

Case 1:07-cv-00241-ML-LDA Document 296 Filed 03/01/13 Page 3 of 4 PageID #: 8310
As to Interrogatory 9, it is a contention Interrogatory seeking information regarding Plaintiffs’ claims that the violation of any rule, regulation, policy or statute caused or contributed to their allegations in the Second Amended Complaint. After reviewing the Interrogatory Responses in dispute and the parties’ arguments, I conclude that Defendants have not shown that Plaintiffs’ detailed responses to Interrogatory 9 (read in conjunction with the referenced portions of their responses to Interrogatory 2) are deficient in stating the facts and circumstances of Plaintiffs’ statutory/regulatory claims. However, Defendants accurately point out that Plaintiffs failed to respond to the portion of Interrogatory 9 asking Plaintiffs to identify “the alleged resulting harm” from such claimed violations. Accordingly, Defendants’ Motion is GRANTED in part solely as to the request in Interrogatory 9 to identify “the alleged resulting harm” and otherwise DENIED. Within twenty-one days, Plaintiffs shall serve on Defendants Supplemental Answers to Interrogatory 9 which identify “the alleged resulting harm” from the statutory/regulatory violations described in their current Answers to Interrogatory 9.
C. Document Nos. 225-229 Defendants’ Motions are DENIED. The two Interrogatories in dispute seek discovery regarding any claimed “policy, pattern, practice or custom” that caused or contributed to Plaintiffs’ claims. However, after serving these Interrogatories, Defendants sought and were successful in obtaining a Protective Order from the Court that limits discovery at this stage of the case to information relevant to the substantive claims of the individual Named Plaintiffs and Defendants’ defenses to such claims. (See Document No. 230). Since Plaintiffs are effectively precluded from seeking policy or practice discovery from Defendants at this stage, it would be inequitable to compel them to provide more detailed responses at this time.
-3-

Case 1:07-cv-00241-ML-LDA Document 296 Filed 03/01/13 Page 4 of 4 PageID #: 8311
D. Document Nos. 233-237 These Motions relate to four contention Interrogatories which ask each Named Plaintiff to state the “facts and circumstances” supporting each of the four causes of action asserted in the Second Amended Complaint. Plaintiffs responded to these Interrogatories with several Objections which are not well founded and are thus overruled. They also responded with 300 paragraphs of generalized facts and then approximately fifty paragraphs of facts as to each Named Plaintiff specific to his or her claims. After reviewing the Interrogatory Responses in dispute and the parties’ arguments, I conclude that Defendants have not shown that Plaintiffs’ detailed responses to these Interrogatories are deficient and thus Defendants’ Motions to Compel (Document Nos. 233-237) are DENIED subject to Plaintiffs’ duty to supplement their Responses if further responsive “facts or circumstances” are uncovered. See Fed. R. Civ. P. 26(e)(1)(A). SO ORDERED
/s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge March 1, 2013
-4-

 
 Case: 13-8014 Document: 00116539492 Page: 1 Date Filed: 06/07/2013 Entry ID: 5739115
United States Court of Appeals
For the First Circuit

No. 13-8014

CASSIE M., by her next friend Kymberli Irons, ET AL.,
Plaintiffs, Petitioners,
v.
LINCOLN D. CHAFEE, in his official capacity as Governor of the State of Rhode Island, ET AL.,
Defendants, Respondents. ________________________
Before
Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.

JUDGMENT Entered: June 7, 2013
Plaintiff-petitioners in this litigation concerning the Rhode Island foster care system have filed a petition seeking leave to appeal under Fed. R. Civ. P. 23(f), or, in the alternative, to obtain a writ of mandamus. The nub of their claim is not that the district court erroneously denied their class certification motion, but, rather that the court decided to address issues of class certification after it addresses issues relating to the individual plaintiffs. Plaintiffs claim that, as a result of the court's approach, they run the risk that the case will become moot before class certification is determined.
The specific order plaintiffs challenge is not the district judge's directive setting the order in which the issues will be considered, which was made over a year ago, but rather, an order simply setting a deadline for defendants to respond to plaintiffs' second motion for class certification for a date fourteen days after the court rules on dispositive motions, presently scheduled for filing in October. Such an order is not appropriate for consideration under Rule 23(f), as the order neither granted nor denied class certification.

Case: 13-8014 Document: 00116539492 Page: 2 Date Filed: 06/07/2013 Entry ID: 5739115
As to plaintiffs' request for mandamus, it is hornbook law that mandamus is an extraordinary remedy that will not be granted where a court has merely exercised its discretionary authority. In re Bushkin Assocs., Inc., 864 F.2d 241, 245 (1st Cir. 1989). No judicial usurpation is evident on this record and we therefore decline to issue the writ. See FedEx Ground Package Syst., Inc. v. U.S. Judicial Panel on Multidistrict Litig., 662 F.3d 887, 891 (7th Cir. 2011) (choice between two methods of case management for MDL litigation was discretionary matter best left to lower courts); In re Huertas, 274 F. App'x 118, 120-21 (3d Cir. 2008) (unpublished per curiam) (how district court controls its docket is committed to its sound discretion, unless undue delay amounts to a failure to exercise jurisdiction and rises to the level of a due process violation) (citing In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982)). Consequently, the petition is denied.
By the Court: /s/ Margaret Carter, Clerk.
cc: Brenda D Baum Jared Bobrow John W. Dineen Miriam Ingber Neil F. X. Kelly James R. Lee Marcia Robinson Lowry Kevin J. Aucoin Ira Lustbader

 
 Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 1 of 108 PageID #: 14543

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

CASSIE M., by Next Friend Kymberli Irons; ALEX and JARED C., by Next Friend Gregory C. Elliott; TERRENCE T., by Next Friend Gregory C. Elliott; TRACY L., by Next Friend Kymberli Irons; DAVID T., by Next Friend Mary Melvin; and DANNY B., by Next Friend Gregory C. Elliott; for themselves and those similarly situated1,

Plaintiffs

v.

C.A. No. 07-241-ML

LINCOLN D. CHAFEE, in his official capacity as Governor of the State of Rhode Island; STEVEN M. COSTANTINO, in his official capacity as Secretary of the Executive Office of Health & Human Services; and JANICE E. DEFRANCES, in her official capacity as Director of the Department of Children, Youth & Families,

Defendants.

MEMORANDUM OF DECISION
This case was brought on behalf of several minors (the “Named
Plaintiffs” or “Plaintiffs”) in custody of the Rhode Island
Department of Children, Youth & Families (“DCYF”), who had been
placed into foster care after they were removed from their biological homes following allegations of abuse and/or neglect.2
1
Pseudonyms are used for all minor plaintiffs.
2
Plaintiffs have named as defendants the governor, the secretary of the executive office of Health and Human Services (“HHS”), and the director of DCYF (together, the “Defendants” or
1

Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 2 of 108 PageID #: 14544
After the parties engaged in a lengthy discovery process and after settlement negotiations were unfruitful, the Plaintiffs’ case was presented to this Court in the course of a sixteen-day bench trial. At the conclusion of the Plaintiffs’ case, the Defendants filed a motion for judgment on the record pursuant to Fed. R. Civ. P. 52. For the reasons set forth herein, that motion is GRANTED. I. Procedural History3
This case was first filed in 2007 on behalf of ten minor children, who were, at the time, in legal custody of DCYF, Rhode Island’s child welfare agency. The action was initiated by then Rhode Island child advocate,4 Jametta O. Alston (“Alston”), and a number of individuals (the “Next Friends”) whom Alston had identified as suited to vindicate the children’s constitutional rights in federal court. Sam M. v. Carcieri, 608 F.3d 77, 82 (1st Cir. 2010). Prior to filing suit, Alston had sent an undisclosed number of DCYF case files to the New York-based child advocacy
the “State”), all of whom are sued in their official capacities.
3
In light of the detailed recounting of this litigation’s history provided in other decisions from the First Circuit Court of Appeals and this Court, this Memorandum of Decision contains only an abbreviated summary. See e.g., Sam M. v. Carcieri, 608 F.3d 77 (1st Cir. 2010); Sam M. v. Chafee, 800 F.Supp.2d 363 (D.R.I. Jul. 20, 2011); Sam M. v. Carcieri, 610 F.Supp.2d 171 (D.R.I. Apr. 29, 2009).
4
The office of the child advocate is created by state statute, R.I. Gen. Laws § 42-73-7, which sets forth the duties to be performed by the child advocate.
2

Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 3 of 108 PageID #: 14545
group “Children’s Rights.” Children’s Rights, which has brought suits against a number of other states in similar foster care management disputes, filed this action on behalf of the ten minor children. See Connor B. v. Patrick, C.A. No. 10-30073-WGY, — F. Supp.2d —, 2013 WL 6181454 at *30 n. 2 (D.Mass. Nov. 22, 2013)(noting that more than a dozen other states have settled with Children’s Rights and that Massachusetts was the first state to proceed to trial in a similar dispute). The action, which named the governor, the secretary of the Rhode Island Office of Health and Human Services, and the director of DCYF as defendants, was intended as a class action suit on behalf of “all children who are or will be in legal custody of [DCYF] due to a report or suspicion of abuse or neglect.” Complaint at ¶ 11 (Dkt. No. 1). The Plaintiffs alleged, inter alia, that the Defendants’ failure to exercise reasonable professional judgment deprived the Plaintiffs of their substantive due process rights, for which they sought declaratory and injunctive relief. Sam M. v. Carcieri, 610 F.Supp.2d at 173.
After the Plaintiffs filed an amended complaint on September 7, 2007, (Dkt. No. 12), the Defendants sought dismissal of the case (1) for lack of standing on part of the Next Friends; (2) based on Younger and Rooker-Feldman abstention principles; and (3) for lack of a private right of action under the Adoption Assistance and Child Welfare Act (“AACWA”), 42 U.S.C. § 670-676. (Dkt. No. 25).
3

Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 4 of 108 PageID #: 14546
On April 29, 2009, the case was dismissed for lack of standing on part of the child advocate and the Next Friends. Sam M. v. Carcieri, 610 F.Supp at 173, 184. Plaintiffs appealed the decision and, on June, 18, 2010, the First Circuit Court of Appeals reversed the dismissal and remanded the case to this Court with instructions to allow the Next Friends to represent the Plaintiffs. Sam M. v. Carcieri, 608 F.3d at 81. The First Circuit noted that, although the children were represented in Rhode Island Family Court proceedings by court-appointed guardians ad litem, also known as Court Appointed Special Advocates (“CASA attorneys”), such an arrangement did not preclude the Plaintiffs from filing suit by a Next Friend. Id. at 87. The First Circuit further concluded that “because these foster care children lack significant ties with their parents and have been placed under the state's legal custody and guardianship, a significant relationship need not be required as a prerequisite to Next Friend status.” Id. at 91. “Important social interests are advanced by allowing minors access to a judicial forum to vindicate their constitutional rights through a Next Friend that the court finds has a good faith interest in pursuing a federal claim on the minor's behalf.” Id. at 91-92.
In determining whether a proposed Next Friend is “‘truly dedicated to the best interests’” of the child whose interest he or she seeks to represent, the trial court must consider “the individual's familiarity with the litigation, the reasons that move
4

Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 5 of 108 PageID #: 14547
[him or] her to pursue the litigation, and [his or her] ability to pursue the case on the child's behalf.” Id. at 92 (quoting Coal. of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1162 (9th Cir. 2002))5.
The First Circuit affirmed the dismissal of all claims brought by four of the Named Plaintiffs (Briana, Alexis, Clare, and Deanna H.) on the ground that legal adoption had rendered their claims moot. Sam M. v. Carcieri, 608 F.3d at 81 n. 1, 93 n. 14. Subsequently, four of the remaining Plaintiffs (Sam M., Tony M., Michael B., and Caesar S.) named in the amended complaint were adopted as well, leaving only two of the original Named Plaintiffs—David T. and Danny B.
Following remand of the case to this Court6, the Defendants filed a second motion to dismiss (Dkt. No. 79) the amended complaint based on (1) mootness, on the ground that all but two of the original ten Named Plaintiffs had been adopted; (2) abstention under Younger, on the ground that certain relief requested by the Plaintiffs from this Court would invade the province of the Family
5
The Next Friends of the remaining Named Plaintiffs in this case are Gregory C. Elliot, PhD, associate professor of sociology at Brown University, and Kymberli Irons. Ms. Irons worked as a behavioral specialist at Named Plaintiff Cassie M.’s school before Cassie entered DCYF care. Professor Elliot has not met any of the former or current Named Plaintiffs.
6 Senior Judge Ronald R. Lagueux recused himself from the case on August 4, 2010. (Dkt. No. 73).
5

Case 1:07-cv-00241-ML-LDA Document 499 Filed 04/30/14 Page 6 of 108 PageID #: 14548
Court; (3) abstention under Rooker-Feldman, on the ground that some of the Plaintiffs’ claims amounted to a request to review unfavorable state court judgments; and (4) lack of private enforceable rights under the AACWA and, relatedly, for breach of contract. In a July 20, 2011 Memorandum and Order, this Court denied, in part, and granted, in part, the Defendants’ motion to dismiss. (Dkt. No. 101).
On February 24, 2012, the Plaintiffs filed a second amended complaint (the “Complaint”)(Dkt. No. 115), which added five children then in DCYF care as Named Plaintiffs (Cassie M., Alex and Jared C., Terrence T., and Tracy L.). The asserted causes of action which survived the Defendants’ motion to dismiss are as follows:
(1) Substantive due process under the United States Constitution—Plaintiffs assert that the actions and inactions of Defendants “constitute a failure to meet the affirmative duty to protect from harm all Named Plaintiffs and class members, which is a substantial factor leading to, and proximate cause of, the violation of the constitutionally protected liberty and privacy interests of all Named Plaintiffs and class members.” Complaint ¶ 220.
(2) Substantive due process under the United States Constitution: State-Created Danger—Plaintiffs assert that “removing Plaintiff Children from their caretakers [or returning them to their parents] and placing them in placements that Defendants know
6

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or should know pose an imminent risk of harm to these children constitute to [sic] a policy, pattern, practice, or custom that is inconsistent with the exercise of professional judgment and that amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and class members.” Complaint ¶ 224.
(3) Violation of the First, Ninth, and Fourteenth Amendments to the United States Constitution—Plaintiffs assert that “[a]s a result of Defendants’ conduct, all Named Plaintiffs and class members have been and are being severely harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a child-parent or a child-sibling family relationship,...” Complaint ¶ 228.
(4) Claims under the AACWA—Plaintiffs assert that the “Defendants are engaging in a policy, pattern, practice, or custom of depriving all Named Plaintiffs and class members of rights conferred on them by the [AACWA],” including rights to timely written case plans and adequate foster care maintenance payments. Complaint ¶ 230.
The parties then engaged in extensive and frequently contentious discovery proceedings. In November 2011, the parties attempted, with assistance from this Court, to agree on settlement terms; such efforts continued into 2012, but were ultimately unsuccessful. In the course of discovery, several changes occurred
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on the Plaintiffs’ legal team, and Alston—who had continued as Plaintiffs’ counsel after leaving her post as Rhode Island’s child advocate—withdrew as counsel of record on September 7, 2012. The claims of four of the remaining seven Named Plaintiffs were dismissed by stipulation when two of the Plaintiffs were legally adopted (Alex and Jared C.) and two reached the age of majority (Terrence T. and David T.).
In April 2013, Plaintiffs sought leave to appeal under Fed. R. Civ. P. 23(f), or, in the alternative, to obtain a writ of mandamus, seeking to challenge this Court’s decision to address the question of class certification after a determination of the claims asserted by the individual Named Plaintiffs. On June 7, 2013, the First Circuit Court of Appeals denied the Plaintiffs’ petition. (Dkt. No. 330).
On July 24, 2013, the Court scheduled the case for trial to commence on October 15, 2013.7 (Dkt. No. 343). On August 2, 2013, the Plaintiffs filed a motion for a decision on class certification prior to the trial (Dkt. No. 348), which the Court denied. (Docket entry from August 14, 2013). On August 29, 2013, the Plaintiffs filed a motion to compel8 the Defendants to permit private meetings
7
The trial start date was extended to November 12, 2013 to give counsel more time to prepare.
8
A motion for access to the Named Plaintiffs had been previously filed by Plaintiffs’ counsel on November 20, 2012 (Dkt. No. 205), but was subsequently withdrawn on January 14, 2013 (Dkt.
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with the Named Plaintiffs, to be conducted by the Next Friends and/or by Plaintiffs’ counsel “for the purpose of preparing for the trial.” Pltfs’ Mot. Compel Access at 1 (Dkt. No. 376). On September 24, 2013, the Court denied the motion—filed three months after the close of discovery—on the ground that the acknowledged purpose of the proposed meetings was to gain information for production at trial that would have been otherwise discoverable. Transcript of Telephone Conference Sept. 24, 2013 at 11:11-25.
The Court did, however, grant the Plaintiffs’ second request (Dkt. No. 207) to have Cassie M., Tracy L., and Danny B. evaluated by the Plaintiffs’ retained forensic psychologist, Dr. Adamakos. Id. at 2:14-24. Prior to granting this motion, the Court obtained assessments from the Plaintiffs’ treating physicians and psychologists, to confirm that the proposed testing and evaluation by Dr. Adamakos would not have any deleterious effect on the children. Id. at 2:18-24. Moreover, Cassie, who was seventeen at the time, and Tracy, who turned eighteen prior to commencement of trial, consented to the evaluation.9 Id. The Court made clear that
No. 257).
9
On December 10, 2013, the tenth day of trial, without explanation, the Plaintiffs sought (by letter and oral motion) to dismiss without prejudice all claims raised by Tracy L. The Court notes that, although Tracy had reached the age of majority four months earlier, the Plaintiffs included her in the testing and interviewing process by Dr. Adamakos. It is this Court’s understanding that Tracy was still in DCYF care at the time the Plaintiffs asked to dismiss Tracy’s claims. (To summarize: of the fifteen Named Plaintiffs in this case, ten were legally adopted,
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Dr. Adamakos was to be instructed that he was to inform the children at the beginning of the evaluations that they could discontinue the evaluation at any time. Tr. Sept. 24, 2013 at 3:1217. See Declaration of Dr. Harry Adamakos at 7 (Dkt. No. 208)(“If during the course of an evaluation a child becomes overly agitated, shuts down, or does not want to continue speaking with me, or if I believe that the evaluation is causing excessive upset to the child, or harming the child in any way, I would end the session or the testing immediately.”)(Emphasis added).
The Plaintiffs presented their case to this Court on sixteen days between November 12, 2013 and January 9, 2014. In the course of their presentation, the Plaintiffs called five expert witnesses:
(1) Joseph P. Ryan, PhD (“Dr. Ryan”), associate professor at the University of Michigan School of Social Work, who conducted a literature review on the impact of nonadherence to national professional standards applicable to child welfare systems;
(2) Thomas Ward (“Ward”), who worked in the administration of child social services for several decades between 1969 and 2002, and who testified regarding several child welfare issues, including maltreatment in care, caseloads, CPS investigations, visitation, and placement array;
three reached the age of majority in the course of this litigation, and two remained as Plaintiffs during the trial.)
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(3) Mary Hansen, PhD (“Dr. Hansen”), associate professor of economics at American University, who was tasked with performing an assessment of the cost of caring for children in Rhode Island foster care and evaluating whether Rhode Island met its obligations under the AACWA in paying foster care maintenance;
(4) Harry Adamakos, PhD (“Dr. Adamakos”), a clinical and forensic psychologist, who was asked to perform forensic clinical evaluations of the Named Plaintiffs,10 focusing his inquiry on what the Plaintiffs experienced in DCYF care and “how they may or may not have been harmed from that experience.” Trial Transcript (“Tr.”) at 7:4-9, 9:58; and
(5) Ruth Chambers, PhD (“Dr. Chambers”), associate professor of social work at California State University Long Beach, who conducted a case study of Danny and Cassie by examining their case files for the time period the Plaintiffs were in DCYF custody.
Following sixteen days of testimony, the Plaintiffs introduced into evidence a number of documents in regard to which no direct testimony had been offered during trial; this submission of
10
As previously noted herein, Dr. Adamakos conducted personal interviews with, and administered tests to, Cassie, Danny, and Tracy; however, Tracy’s claims were dismissed without prejudice prior to Dr. Adamakos’s testimony, and no testimony was offered in regard to her evaluation.
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documentary evidence completed the Plaintiffs’ case. After the Plaintiffs rested, the Defendants asserted their motion for judgment on the record pursuant to Fed. R. Civ. P. 52(c). At that time, the Court inquired whether Plaintiffs intended to dismiss voluntarily the breach of contract claim. Tr. XVI at 123:21124:18.11 Counsel responded in the negative. Tr. XVI at 124:19125:13. Because no evidence related to a contract claim had been submitted during trial, the Court dismissed that claim. Tr. XVI at 125:9-11. Pursuant to the Court’s direction, the parties provided timely memoranda in support of their respective positions on the State’s motion. (Dkt. No. 497-1, Dkt. No. 498). II. Standards of Review
(A) Motion for Judgment on the Record Pursuant to Federal Rule of Civil Procedure 52(c), “[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” Fed.R.Civ.P. 52(c). The Court’s
11
Plaintiffs’ claim of breach of federal contractual obligations to third party beneficiaries, asserted as the sixth cause of action in the amended complaint, (Dkt. 12 at 81), survived the State’s motion to dismiss, see Memorandum and Order from July 20, 2011 (Dkt. No. 101 at 55-56, preserving breach of contract claim). However, it does not appear that Plaintiffs reasserted a separate breach of contract claim in their Second Amended Complaint (Dkt. No. 115).
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“judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a)12.” Id.
A court should enter judgment pursuant to Rule 52(c) “[w]hen a party has finished presenting evidence and that evidence is deemed by the trier insufficient to sustain the party’s position.” Morales Feliciano v. Rullan, 378 F.3d 42, 59 (1st Cir. 2004); In re Mosher, 432 B.R. 472, 475 (Bkrtcy.D.N.H., June 8, 2010)(Rule 52(c) motion should be granted “where the plaintiff fails to make out a prima facie case, or despite a prima facie case, the court determines that the preponderance of evidence goes against the plaintiff’s claim”). In ruling on a motion pursuant to Rule 52(c), the Court “need not consider the evidence in a light favorable to the plaintiff and may render judgment for the defendant if it believes the plaintiff’s evidence is insufficient to make out a claim.” Geddes v. Northwest Missouri State Univ., 49 F.3d 426, 429 n. 7 (8th Cir. 1995). Is it the Court’s prerogative “to weigh the evidence, resolve any conflicts in it, and ‘decide for itself where the preponderance lies.’” Morales Feliciano v. Rullan, 378 F.3d at 59 (citing 9C Wright & Miller Fed. Prac. & Proc. Civ. § 2573.1, at
12
Federal Rule 52(a) provides the following: In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58. Fed. R. Civ.P. 52(a).
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497–99); Int’l Union of Operating Eng’rs, Local Union 103 v. Indiana Constr. Corp., 13 F.3d 253, 257 (7th Cir. 1994)(citing Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1475 (7th Cir. 1993)).
(B) Substantive Due Process Claims Before addressing the Defendants’ motion on the merits, the Court must make a determination that is critical to its analysis in this case: under what standard of review are the Plaintiffs’ claims and the State’s corresponding motion to be considered? After the Plaintiffs rested and the State asserted its motion under Fed.R.Civ.P.52(c), the Court noted that, in the pretrial memoranda, the parties had indicated a distinct dispute over the standard of proof applicable to substantive due process claims asserted by children in foster care. For that reason, the Court expressly instructed the parties to present it with case law, particularly from the First Circuit, to support their respective positions. Tr. XVI 126:10-127:1. The State, in its memorandum, asserts that “[t]he ‘shock the conscience’ standard must be applied to the facts of this case.” State Mem. at 11 (Dkt. No. 497-1). More particularly, the State argues that the First Circuit Court of Appeals has consistently applied the “shock the conscience” standard to all substantive due process challenges to executive action. Id. at 7. The Court notes, however, that the cases on which the State relies for this
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assertion are not related to children in foster care nor do they involve individuals in involuntary custody. See e.g., DePoutot v. Raffaelly, 424 F.3d 112 (1st Cir. 2005)(§ 1983 claim asserted against arresting officer by individual whose drivers’ licence was suspended for refusing to submit to breath test); Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010)(§ 1983 claim against medical resident at state medical facility for alleged sexual assault during emergency room examination); Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999)(§ 2254 claim by parolee for re-arrest following erroneous early release); Mongeau v. City of Marlborough, 492 F.3d 14 (1st Cir. 2007)(§ 1983 action by developer against city following denial of building permit); Gonzales-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010)(class of prisoners convicted of murder brought § 1983 claim following their re-incarceration).
The State does acknowledge that the First Circuit Court of Appeals concluded in J.R. v. Gloria, 593 F.3d 73 (1st Cir. 2010), a DCYF case, that “deliberate indifference” may rise to conscienceshocking conduct in the foster care context. Id. at 10. See J.R. v. Gloria, 593 F.3d at 80 (noting that “deliberately indifferent behavior does not per se shock the conscience . . . it is only ‘[i]n situations where actors have an opportunity to reflect and make reasoned and rational decisions’ that ‘deliberately indifferent behavior may suffice to shock the conscience.’”)(quoting Rivera v. Rhode Island, 402 F.3d 27, 36 (1st
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Cir. 2005)). The State also acknowledges that, in this Circuit, the application of the conscience-shocking standard “varies from context to context,” Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004), and that the “analysis will vary with the subject matter and the circumstances.” Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006).
Accordingly, the State’s position is that “[a]t bottom, conduct must be conscience-shocking; nonetheless the State maintains that ‘deliberate indifference’ must be applied here” to gauge the Defendants’ conduct. Defs’ Mem. at 10. The State expressly rejects the suggestion that “a mere substantial departure from professional judgment without more establishes a cognizable substantive due process claim,” noting that “this amounts to nothing more than a negligence standard.” Id.
On their part, the Plaintiffs urge the Court to apply the “professional judgment” standard, which “does not require Plaintiffs to separately demonstrate conscience-shocking conduct.” Pltfs.’ Mem. at 10 (Dkt. No. 498). To support their argument, the Plaintiffs rely on a line of Supreme Court cases that establish an appropriate standard of review for substantive due process claims brought by, or on behalf of, parties “who are in the custody of the state through no fault of their own.” Id. 10-12; Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)(applying “professional judgment” standard to an involuntarily committed
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individual suffering from mental retardation, and acknowledging that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.”)(internal quotation marks and citation omitted); County of Sacramento v. Lewis, 523 U.S. 833, 852 n. 12, 118 S.Ct. 1708, 1719 n.12, 140 L.Ed.2d 1043 (1998)(confirming that an involuntarily committed patient could “state a claim under § 1983 for a violation of substantive due process if the personnel at the mental institution where he was confined failed to exercise professional judgment” because “[t]he combination of a patient's involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient's welfare”).
The Plaintiffs also point to a series of cases from the First Circuit to support their position that the Youngberg professional judgment standard should be applied in this case. Pltfs.’ Mem. at 11-14. See e.g. Santana v. Collazo, 793 F.2d 41, 43 (1st Cir. 1984)(acknowledging that “juveniles who have not been convicted of crimes have ‘a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals’”)(citation omitted); Doe v. Gaughan, 808 F.2d 871, 885
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(1st Cir. 1986)(applying Youngberg standard to claims by involuntarily committed patient with mental retardation; noting, however, that “[i]n determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness.”)(quoting Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462–63); Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011)(in case of civilly committed plaintiff, application of Youngberg standard, defined as “whether the defendant failed to exercise a reasonable professional judgment”); Davis v. Rennie, 264 F.3d 86, 98 (affirming trial court’s refusal to apply “shock the conscience” standard to § 1983 claims brought by involuntary committed mental patient against mental health personnel). It is noted that in Davis v. Rennie—which was decided after Sacramento v. Lewis—the First Circuit confirmed the distinction between criminals in confinement and persons in custody involuntarily and through no fault of their own. 264 F.3d at 99-100. Because “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish,” the Davis Court concluded that a “shocks the conscience” jury instruction was not indicated.
Because there does not appear to be a clearly established standard under which to review substantive due process claims by children in state care, in the context of what amounts to
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institutional reform litigation, the Court has reviewed both Supreme Court precedent and case law from this Circuit to discern the principles which must shape its analysis.
A review of decisions from courts which have considered due process claims in similar, if not identical, circumstances, leads this Court to conclude that the prevailing standards are not clearly delineated; rather, the appropriate standard for considering substantive due process claims falls somewhere on a continuum between the failure to exercise “professional judgment” and conduct that is clearly “conscience shocking.” Factors that determine where on the continuum the standard lies include (1) the nature of the right alleged to be violated; (2) the characteristics of the plaintiffs who allege such a violation; (3) the existence of a special relationship between plaintiffs and defendants; (4) the acts or omissions of defendants and/or resulting harm suffered by the plaintiffs; and (5) the circumstances under which the complained of conduct occurred. Any variation in the facts of a case moves the fulcrum of the scale on which the substantive due rights of the individual are weighed against the necessity of officials’ behavior.
It is well established that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v.
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Winnebago Cnty. Dept. of Social Serv., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989)(citing Youngberg v. Romeo, 457 U.S. at 317, 102 S.Ct. at 2458). The DeShaney Court also acknowledged that the removal of a child from his family and placement in a state-operated foster home created a situation “sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” Id. at 201 n. 9, 109 S.Ct. at 1006 n. 9.
Youngberg established that individuals in civil custody of the state generally enjoy broader liberty rights than those in criminal custody. 457 U.S. at 321, 102 S.Ct. at 2461 (holding that “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish”). Accordingly, the standard appropriate in the civil commitment context is distinguishable from the “deliberate indifference” standard applicable in the prisoner context. See Estelle v. Gamble, 429 U.S. 97, 104, 97, S.Ct. 285, 291, 50 L.Ed.2d 251 (1976)(concluding that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment”).
In Youngberg, the Court acknowledged the necessity for a “balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of
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safety and freedom from unreasonable restraints.” 457 U.S. at 322, 102 S.Ct. at 2461. The Court also noted that “courts must show deference to the judgment exercised by a qualified professional.” 457 U.S. at 322, 102 S.Ct. at 2461. “[T]he decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id.
The Court’s subsequent statement in Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 1717, 140 L.Ed.2d 1043 (1998), that “in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” does not change its holding in Youngberg regarding the applicability of the “professional judgment” standard. Lewis involved a high-speed pursuit of a motorcyclist by a sheriff’s deputy, during which the motorcycle passenger was killed. The Court distinguished those circumstances from those of the typical pre-trial custody, concluding that “when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates ‘the large concerns of the governors and the governed.’” 523 U.S. at 853, 118 S.Ct. at
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1720 (citation omitted). From this line of Supreme Court cases, it is apparent that
both the “professional judgment” standard and the “deliberate indifference” standard have a place in this type of analysis and that conduct that fails under either standard may or may not also implicate the “shock the conscience” test. Lewis, 523 U.S. at, 118 S.Ct. at 1719)(“That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.”)(quoting Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942)).
The First Circuit has acknowledged that “the ‘shock the conscience’ standard is imprecise,” DePoutot v. Raffaelly, 424 F.3d at 118, and that decisions with respect to substantive due process claims “are almost always highly dependent on context and detail.” Id. at 119. See Coyne v. Cronin, 386 F.3d at 288 (“The conscience-shocking standard is not a monolith; its rigorousness varies from context to context”)(citing Lewis, 523 U.S. at 850). The First Circuit Court of Appeals has acknowledged that “in situations where a state creates a special relationship because of ‘the limitation which [the state] has imposed on [an individual's] freedom to act on his own behalf,’ its subsequent failure to protect an individual may amount to a substantive due process
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violation.” J.R. v. Gloria, 593 F.3d at 79(quoting Rivera v. Rhode Island, 402 F.3d at 34 (quoting DeShaney, 489 U.S. at 200, 109 S.Ct. 998)). In J.R. v. Gloria, the minor plaintiffs were removed from their mother’s custody and placed into Rhode Island foster care, where they were alleged to have suffered physical and sexual abuse. The plaintiffs’ claims were directed against a social worker and her supervisor individually for failing to comply with state law requirements. After the trial court granted the defendants judgment as a matter of law based on the defendants’ qualified immunity, the Court of Appeals upheld the dismissal of the case.
The Court noted in J.R. that “[t]he mere creation of a special relationship, even if placing young children into foster care created such a relationship, is not enough to make out a due process claim for any harm that may follow.” J.R. v. Gloria, 593 F.3d at 79. Rather, the plaintiff is required to establish that the conduct by state officials was “conscience-shocking.” Id. The Court concluded that “state officials' negligence, without more, is simply insufficient to meet the conscience-shocking standard.” Id. at 80 (emphasis added). See also, Rivera v. Rhode Island, 402 F.3d at 36 (“[I]n a state creation of risk situation, where the ultimate harm is caused by a third party, ‘courts must be careful to distinguish between conventional torts and constitutional violations, as well as between state inaction and
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action.’”)(quoting Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997)). The J.R. Court reiterated that “deliberately indifferent
behavior does not per se shock the conscience.” Id. at 80 (emphasis added). “[I]t is only ‘[i]n situations where actors have an opportunity to reflect and make reasoned and rational decisions’ that “deliberately indifferent behavior may suffice to shock the conscience.’” Id. (quoting Rivera v. Rhode Island, 402 F.3d at 36).
The precedential value of J.R. v. Gloria to establish the applicable standard of review in the circumstances of the case now before this Court is limited, however. As pointed out by Judge Ponsor of the District Court for the District of Massachusetts, the parties in J.R. did not raise the applicability of the professional judgment standard under Youngberg; J.R. did not seek to address alleged systemic failures within the foster care system; and the plaintiffs in J.R. sought damages, not injunctive relief. Connor B. v. Patrick, C.A. No. 10-cv-30073-MAP, 771 F.Supp.2d at 162 n.5.
Another indication as to which standard of review is appropriate in the instant case is the First Circuit’s pronouncement that “the shocks-the-conscience test, first articulated in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), governs all substantive due process claims based on executive, as opposed to legislative, action.” Martinez v. Cui, 608 F.3d at 64 (emphasis added)(Plaintiff asserted claims of sexual assault by medical resident at state facility as violation of
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substantive due process under § 1983). The Martinez Court noted, however, that “whether behavior is conscience-shocking may be informed in some cases by the nature of the right violated.” Id. at 66. Moreover, unlike in the instant case, which seeks to address allegations of systemic shortcomings of the State’s foster care system, the plaintiff’s allegations in Martinez were more akin to those asserted in a negligence or medical malpractice tort claim. Martinez, 608 F.3d at 66-67 (“The Supreme Court has repeatedly emphasized that due process claims may not be used in that manner.” See Lewis, 523 U.S. at 848–49, 118 S.Ct. 1708 (citing Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).
Other courts that have addressed the issue in circumstances comparable to the instant case have sometimes elected to combine standards under which to review allegations of substantive due process violations. In Yvonne L. v. New Mexico Dept. of Human Serv., 959 F.2d 883 (10th Cir. 1992), the Tenth Circuit Court of Appeals reviewed two plaintiffs’ civil rights action against state officials for injuries they suffered while in state custody and foster care. The Yvonne L. Court adopted the standard set forth in Youngberg, noting that “‘[f]ailure to exercise professional judgment’ does not mean mere negligence as we understand Youngberg; while it does not require actual knowledge the children will be harmed, it implies abdication of the duty to act professionally in making the placements.” Yvonne L. v. New Mexico Dept. of Human
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Serv., 959 F.2d at 894. See also Schwartz v. Booker, 702 F.3d 573, 585-586 (10th Cir. 2010)(§ 1983 claim for violation of substantive due process rights brought against human services department after child died in foster care)(“Whether the state official failed to exercise professional judgment requires more than mere negligence; the official must have abdicated her professional duty sufficient to shock the conscience.”)
The Ninth Circuit Court of Appeals conducted a detailed review of the standards employed by other courts in cases involving foster care. Tamas v. Dept. of Social & Health Serv., 630 F.3d 833, 844846 (9th Cir. 2010)(Plaintiffs brought claims of negligence and civil rights violations against department and nine of its employees, after suffering years of sexual abuse at hand of foster parent). The Tamas Court, persuaded by Ninth Circuit precedent and cases from other circuits, applied the “deliberate indifference” standard. Tamas v. Dept. of Soc. & Health Serv., 630 F.3d at 845. The Court further explained that the standard, “as applied to foster children, requires a showing of an objectively substantial risk of harm and a showing that the officials were subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that either the official actually drew that inference or that a reasonable official would have been compelled to draw that inference.” Id. The Court noted that “the subjective component may be inferred ‘from the fact
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that the risk of harm is obvious.’”) Id. (citation omitted). A similar two-element “deliberate indifference” standard was
applied by the Seventh Circuit Court of Appeals in Waubanascum v. Shawano Cnty., 416 F.3d 658 (7th Cir. 2005)(Substantive due process claims asserted by foster child against counties and school district after child suffered sexual abuse by foster parent). The Waubanascum Court defined a “modified” deliberate indifference standard, under which “the state must have actual knowledge or suspicion of the risk of harm the child may suffer while in foster care.” Waubanascum v. Shawano County, 416 F.3d at 666-667.
The Fourth Circuit Court of Appeals drew the distinction between “deliberate indifference” and “negligence” in the foster care context in Doe v. South Carolina Dept. of Soc. Serv., SCDSS, 597 F.3d 163 (4th Cir. 2010)(Claims brought by minor and her adoptive parents related to child’s foster care placement and adoption process). The Court of Appeals concluded that the involuntary removal of a child from her home imposed a responsibility on the state for the child’s safety and general well-being, which included “a duty not to make a foster care placement that is deliberately indifferent to the child’s right to personal safety and security.” Doe v. South Carolina Dept. of Soc. Serv., SCDSS, 597 F.3d at 175. The Court noted that a “‘claim of deliberate indifference, unlike one of negligence . . . implies at a minimum that defendants were plainly placed on notice of a danger
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and chose to ignore the danger notwithstanding the notice.’” Id. at 175 (quoting White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997)).
Although the cases from other circuits are instructive on the issue of the appropriate standard of review, the applicability of those cases is limited because they all arose from claims asserted by foster children who had suffered severe abuses by foster parents or by third parties while the plaintiffs were in foster care. In contrast, the Plaintiffs in this case seek declaratory and injunctive relief in an effort to bring about systemic changes that, they believe, will improve the Rhode Island foster care system.
The Plaintiffs in the instant case clearly belong in a most vulnerable category. They are minors who have been removed from their homes after a finding of abuse and/or neglect. They find themselves in custody of the State involuntarily and through no fault on their part. The Court notes that the due process claims asserted by the Plaintiffs are not directed against individuals for alleged wrongdoings, and that the Plaintiffs do not seek compensation for the harm they allege to have suffered or the risk of harm they allege to have been exposed to. Instead, the Plaintiffs seek injunctive and declaratory relief to effect systemic reform to Rhode Island’s child welfare services, particularly the State’s foster care system. Complaint at 37 (Dkt.
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No. 115). Under those circumstances, and after reviewing the relevant
case law, the Court concludes that a straight application of the “shock the conscience” standard suggested by the State is inapplicable in this case, to the extent that the standard requires conduct that is “‘extreme and egregious,’” Pagan v. Calderone, 448 F.3d 16, 32 (1st Cir. 2006) (quoting DePoutot, 424 F.3d at 118), “‘truly outrageous, uncivilized, and intolerable,’” id. (quoting Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999), or “‘stunning,’” id. (quoting Amsden v. Moran, 904 F.2d 748, 754 n. 5 (1st Cir.1990)).
Under the circumstances of this case, a substantial departure from accepted professional judgment, or a deliberate disregard (or complete absence) of a process established by the State for the protection of children in foster care may well constitute a degree of deliberate indifference that could also be said to shock the conscience. The question remains, however, against which accepted professional standard any such deviation should be measured and what degree of deviation from such a standard is required to result in a violation of the plaintiffs’ due process rights.
In the course of the trial, the Plaintiffs frequently referred to the “Standards of Excellence” established by the Child Welfare League of America (“CWLA”), a membership-based child welfare organization. The CWLA standards, by their own description, “are
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intended to be standards of excellence—goals for the continuing improvements of services for children and their families.” 1999 CWLA Standards, Ex. 2004 at PLTF0032801. The CWLA standards provide “a vision to which we can aspire,” id., and they “carry no implication of control or regulation.” Id. at PLTF0032809. Accordingly, the CWLA standards present an ideal or goal to be achieved; they cannot serve to establish whether Rhode Island policies or conduct by state officials or employees falls short of professional judgment.
Another set of standards against which Plaintiffs sought to measure services provided by the State to children in foster care is set by the Council for Accreditation (“COA”). Tr. I at 134:1-14. The COA accredits child welfare agencies, and its standards are intended to guide practices in the delivery of foster care services. Rhode Island has officially acknowledged that “[the standards set by the Council on Accreditation (COA) are nationally recognized as best practices for protecting and providing services to abused and neglected children.” R.I. Gen. Laws 42-72-5.3(a). Rhode Island has also declared its intent “to provide the resources for the department of children, youth, and families to meet, achieve and sustain accreditation by the Council on Accreditation.” R.I. Gen. Laws 42-72-5.3(b). To the extent Rhode Island DCYF practices and policies have adopted or have been modeled after the COA standards, a significant deviation from COA standards may well
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constitute a substantial departure from accepted professional judgment that, under certain circumstances, may give rise to a substantive due process claim by individuals for whose benefit such standards have been implemented.
The Court notes that, as is further detailed herein, the COA standards do not have the force of statutory regulations and they include some built-in flexibility in certain circumstances. The Court is also mindful that the State, although it is mandated to protect the health and safety of the children it takes into its custody and places into the foster care system, can control neither the volume of its intake, nor the characteristics and needs of its individual charges.
In consideration of the Plaintiffs’ extreme vulnerability, the special relationship established by the State upon taking custody of the Plaintiffs, the nature of the due process rights asserted by the Plaintiffs, and the harm which the Plaintiffs allege to have suffered, the Court is of the opinion that official conduct which constitutes either a deliberate disregard of, or a substantial deviation from, a professional standard acknowledged and, at least in part, implemented by the State, may support the Plaintiffs’ claim of a due process violation if such conduct can also be shown to have deprived the Plaintiffs of a constitutionally protected interest.
It is against this framework that the Court will proceed to
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review the Plaintiffs’ claims of due process violations and the evidence that they presented in support of their allegations at trial. The following constitutes the Court’s findings of facts and conclusions of law in considering the State’s motion for judgment on the record pursuant to Fed.R.Civ.P. 52(c). III. Findings of Facts and Conclusions of Law
(A) The Named Plaintiffs 1. Cassie M.
Cassie was born in 1996. Tr. XI at 24. After an investigation into allegations of abuse and neglect in her biological home, Cassie entered DYCF care in 2006, when she was nine years old. Tr. XI at 25. Although not every detail of Cassie’s early years need be discussed herein, some of the undisputed facts establish that, while in her biological home, Cassie lived in circumstances that no child should have to experience. Tr. XII at 58-61. To summarize, Cassie suffered neglect and deprivations of the most extreme kind; she was also exposed to physical abuse, sexual abuse of her siblings, and incidents of domestic violence. Id. While still living in her biological home, Cassie was diagnosed with ADHD for which she was prescribed Adderall (although there was some question as to whether her mother was giving the medication to Cassie regularly). Tr. XII at 61.
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Cassie’s younger sister and two older half-sisters13 entered into DCYF care at the same time; an older half-sister was no longer living at the house full-time. Tr. XI at 26-27. Initially, Cassie was placed in foster care on an emergency basis for less than a month, after which she was placed into specialized foster care with the DM family for about a year. Tr. XI at 30. During her stay at the DM home (where her half-sisters were also placed for a time, see Tr. XII at 107), Cassie exhibited certain disruptive behaviors that made her difficult to manage. Tr. XI at 34. A psychiatric evaluation performed seven weeks into foster care placement revealed that Cassie was grossly underweight, had minimal hygiene skills, was unfamiliar with the use of a knife and fork, and had to be redirected to limit her physical contact with others. Tr. XII 64, Ex. 2048. Cassie’s treating psychiatrist stated that it was “unclear whether [Cassie] will be able to tolerate a more intimate setting without more intense and unstable effects,” Tr. XII at 67:15-17, and included in his diagnoses “rule out language disorder” and “rule out reactive attachment disorder.” Tr. XII at 68:20-25. While Cassie was at the DM home, she was provided with weekly therapy and other support from NAFI [North American Family Institute]. Tr. XII at 69. After the DM family requested camps or after-school dance activities for Cassie to assist with her
13
It is unclear how long the two half-sisters stayed in DCYF care; both of them were teenagers in 2006. Tr. XI at 28.
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behaviors, they were provided. Tr. XII at 70. In early 2007, Cassie was referred for a sexual abuse evaluation because she was exhibiting certain sexualized behaviors. Tr. XII at 80.
Cassie was eventually removed from the DM home because both the foster family and DCYF considered the situation unworkable. Tr. XI at 35. Cassie’s behaviors while in the DM home included hoarding of food, taking and destroying things, lying, temper tantrums, sexual and physical boundary issues, as well as enuresis and encopresis. Tr. XII at 70-71.
Cassie stayed less than six months in another specialized foster home (the J home); although Cassie initially did show improvement, there was some regression in her more difficult behaviors. Tr. XI at 36. In general, there was concern that Cassie had problems attaching to either of the two foster homes. Tr. XI at 38. While at the J home, Cassie was again provided with services by DCYF, including weekly counseling. Tr. XII at 72. As no third specialized foster home was available, and it was believed that Cassie needed more services than a specialized foster home could offer, Tr. XII at 73, Cassie was placed in the TH group home, where she remained for approximately three years. Tr. XI at 37. During that placement, Cassie demonstrated some success in terms of her behavior, although other behavioral problems remained. Tr. XI at 41.
In the interim, about two years after Cassie was first placed
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into DCYF custody, her mother’s parental rights were terminated. Tr. XI at 53-54. Prior to such termination, a clinical psychologist conducted a parent-child evaluation, in which the psychologist observed, inter alia, that Cassie’s mother was “emotionally isolated” from her daughters, and that Cassie was “the most isolated” of the three girls.14 Tr. XII at 77:5-21. Cassie’s mother was diagnosed as bipolar; and it was noted that, rather than taking her medication, Cassie’s mother would smoke marijuana in an attempt to alleviate her condition. Tr. XII at 84.
Although the Family Court allowed Cassie’s mother continued contact with Cassie, the visits were inconsistent and sporadic, with long periods of time where there was no contact from the mother. Tr. XI at 55. Cassie appeared to be disturbed by the contact with her mother (and the infrequency of it), and Cassie’s behavior became more difficult both before and after visits. Tr. XI at 55-56.
In April 2010, it was recommended that Cassie be placed in a specialized pre-adoptive foster home. Tr. XI at 42. In June 2010, Cassie was placed in the LH group home for about 19 months. Tr. XI at 42. During that placement, it was noted that there was an increase in the problematic behaviors; Cassie was described as oppositional and disruptive. Id. At times, Cassie threatened to
14
As previously noted herein, two of the five girls were older and their involvement with DCYF was brief.
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harm herself, which resulted in several hospitalizations. Cassie never did harm herself, however; peer conflicts were usually verbal; and there was no record of physical altercations, although there was some sexual acting out between Cassie and other residents. Tr. XI at 43-45. In one particular incident, inappropriate contact between Cassie and another resident led to a two-day suspension of one of the staff members. Tr. XI 46. While she was at this second group home, Cassie maintained contact with visiting resources, a couple with whom Cassie formed a good bond of attachment.
In November 2011, the recommendation was made that Cassie be placed in a specialized foster home without younger children. Tr. XI 47. In early 2012, Cassie was placed in the AD home—another specialized foster home—where she stayed about eleven months. Tr. XI at 49. After leaving the AD home15, Cassie was placed in another group home16. Tr. XII at 99. Around that time, Cassie’s younger sister A. was legally adopted. Tr. XI at 87. At some point, A.’s adoptive parents requested that Cassie’s communication with her sister be discontinued as it was having a negative effect on A. Tr.
15
According to the record, AD stopped fostering children because the agency she was working with closed its doors.
16
Apparently, Cassie was placed in two different group homes that both were abbreviated as “LH,” which confuses understanding of her placement history; it does not affect a determination of the events that took place over the course of Cassie’s time in DCYF care.
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XII at 107. Following a physical dispute at this group home, Cassie went
to another foster home, but decided that she did not want to stay there. Tr. XII at 100. At the time of the trial, Cassie was residing at the G group home. Tr. XI at 53.
2. Danny B. Danny was born in 2001. Danny’s biological family had come to DCYF’s attention in 2004, when police were called because Danny and his younger brother, M., were found wandering the streets. Tr. X at 144. In the course of a CPS [Child Protective Services] investigation, it was determined that the mother had left the boys with a caregiver who had become intoxicated. Tr. XI at 138. Danny and M. were removed from their biological home in April 2005—when Danny was four years old—for reasons of neglect, concerns about parental drug use and substance abuse, lack of parental supervision, and the occurrence of domestic violence requiring police intervention. Tr. X at 38, 39, 145. The home had also been found unfit for habitation. Tr. X at 145. At the time Danny and M. came into DCYF care, Danny was described as “energetic, hyperactive, and impulsive.” Tr. X at 41:2-5. He also had some speech and motor issues, Tr. X at 41; very limited verbal ability, Tr. XI at 153; and he was “undersocialized,” with regard to hygiene, toileting, and other issues. Tr. XI at 41:6-8. After a very brief placement with their
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maternal great-grandmother, the great-grandmother indicated that both Danny and his brother were exhibiting sexualized behaviors and that she could not handle their behavior.17 Tr. XI at 151, 182. Danny was then placed in the LF foster home, where he remained for more than a year. Tr. X at 42. M. was placed in a different foster home. During Danny’s stay at the LF home, the foster mother reported that Danny had problems with enuresis, encopresis, screaming, swearing, and aggressive behavior on a daily basis. Tr. XI at 176. Danny’s psychiatrist diagnosed him with adjustment disorder, disturbance of conduct, and a rule-out diagnosis of ADHD. Tr. XI at 177. While in the LF home, Danny received weekly treatment by a clinician to assist the foster mother with Danny’s behaviors. Tr. XI at 180-181. The foster mother also observed sexually explicit behavior on Danny’s part and expressed her concern regarding that issue during an IEP [Individualized Education Program] meeting at Danny’s school. Tr. XI at 186. Danny was removed from the LF foster home after there was an allegation of sexual abuse18, which, after an investigation, was determined to be unsubstantiated. Tr. X at 47.
Following his removal from the LF home, Danny appeared to
17
M. was later referred for a sex abuse evaluation because of his sexualized behaviors. Tr. XI at 182.
18
The allegation was raised by an unidentified third party, not Danny himself. Tr. X at 48.
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require more structure and direction. He was difficult to manage and he began to make allegations that his brother had touched him over his clothes. Tr. X at 49-50. After a brief return to his great-grandmother’s house, where he was reunited with his brother, Danny was placed in a group home. Tr. X at 51. He showed some improvement in the group home setting and, by May 2007, an adoption placement was strongly recommended. Tr. X. at 52. Efforts to find a suitable pre-adoptive home were made by DCYF, and Danny began visiting with the J family. Tr. X at 52. The adoption did not come to fruition after Danny alleged that he had been hit by the preadoptive father during a visit, an allegation that the family denied. Tr. X at 53-54; Tr. XII at 38.
After additional efforts by DCYF, another potential preadoptive home was found, and Danny stayed with the T family for about seven months. Tr. X. at 54. After the T family found Danny’s behavior too difficult to manage, Danny returned to the group home where he stayed for approximately eight months. Tr. X at 55. Again, Danny responded to the structure provided in the group home and his behavior improved. Tr. X at 56. During this placement, Danny was receiving regular weekend visits with his grandmother and with a visiting resource. Tr. XII at 17. Some time after he was removed from the T family, Danny alleged that the pre-adoptive mother had yelled at him and that the pre-adoptive father had twisted his arm. Tr. X at 57.
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In February 2010, another pre-adoptive home was identified for Danny. Tr. X at 60. The adoption by AF, a single male, did not come to pass after AF withdrew from consideration. Tr. X at 67. Although the record shows that AF was given extensive information regarding Danny’s evaluation, care, and treatment, it appears that AF conducted internet research on his own and then conveyed to DCYF that he thought Danny would benefit from services more targeted towards Danny’s sexual acting out. Tr. XII at 33-34. After AF’s withdrawal, Danny exhibited some decline in his functioning, which included the recurrence of sexual acting out. Tr. X at 70.
In December 2010, now at age nine, Danny received a placement at the SM residential treatment center. Tr. X at 70. Following that placement, Danny showed some improvement, but also an increase in sexual acting out. Tr. X at 73. According to a caseworker’s note, Danny was punched during a physical altercation with another child at the home. Tr. X at 79. When Danny’s social worker was advised that, following an incident with another resident, Danny was bruised, she met with Danny’s clinician. Tr. XII at 45-46. The incident was investigated and, after it was concluded that staff could not have prevented what was a “spontaneous engagement between two residents,” staff was advised to continue an “increased level of oversight.” Tr. XII at 46:21-25.
On another occasion, Danny was restrained by staff, Tr. X at 79, and there was some indication in Danny’s file that there had
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been two investigations as to staff conduct for allegations of an incident involving inappropriate restraints. Tr. X at 84. That incident did not involve Danny; there was no evidence in the record that Danny was present or observed the incident; and, following a CPS investigation, the staff member at the SM home was terminated. Tr. XII at 43.
Although it had been previously recommended that Danny would benefit from a stable and secure adoptive home, it was noted in February 2012 that Danny was not ready to transition from the SM residential treatment home because he was not ready for a less restrictive environment. However, adoption remained the placement plan. Tr. X at 92. At the time of the trial, Danny was still residing at the SM home. Tr. X at 85. The current recommendation is to place him in a pre-adoptive home, Tr. X at 86, and since the 2012 evaluation, efforts have been made to find Danny an adoptive or foster home placement. Tr. X 94.
From the time Danny came into DCYF care, and throughout his various placements, Danny has received regular treatment and evaluations by healthcare professionals in different specialties to address behavioral issues. Tr. XII at 3-4, 7, 9, 10, 13. DCYF, Adoption Rhode Island, and his placement supports have been working towards finding Danny a pre-adoptive placement since the termination of parental rights to Danny. Tr. XII at 22.
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(B) The Plaintiffs’ Case To establish a substantive due process claim, the Plaintiffs must first “show a deprivation of a protected interest in life, liberty, or property.” Rivera v. Rhode Island, 402 F.3d at 3334(citing Rhode Island Bhd. of Correctional Officers v. Rhode Island, 357 F.3d 42, 49 (1st Cir.2004); Macone v. Town of Wakefield, 277 F.3d 1, 9 (1st Cir.2002)). In addition, the Plaintiffs must establish that the deprivation of this protected right was caused by governmental conduct. Rivera v. Rhode Island, 402 F.3d at 34. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cnty. Dept. of Soc. Serv., 489 U.S. at 199–200, 109 S.Ct. 998, 103 L.Ed.2d 249, (citing Youngberg v. Romeo, 457 U.S. at 317, 102 S.Ct. 2452, 73 L.Ed.2d 28). Under such circumstances, the State is required to provide for the basic human needs of the individual in its custody, “e.g., food, clothing, shelter, medical care, and reasonable safety,” DeShaney v. Winnebago Cnty. Dept. of Soc. Serv., 489 U.S. at 200. The Plaintiffs assert in their Complaint what appears to be a number of additional rights to which they lay claim, including “appropriate planning and services directed toward ensuring that
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the child can leave foster care and grow up in a permanent family,” and the right “to be placed in the least restrictive placement according to a Plaintiff Child’s needs.” (Dkt. No. 115 at ¶ 222). However, to the extent that meeting such particular needs is essential to provide a child in DCYF custody with reasonable care and safety, the Court reviews the Plaintiffs’ claims under the standard articulated herein. See Section III, supra; see also Connor B. v. Patrick, C.A. No. 10-30073-WGY, — F. Supp.2d —, 2013 WL 6181454 at *23.
In support of their due process claims and the claims brought under the AACWA, the Plaintiffs offered the testimony of five separate expert witnesses.
1. Dr. Ryan’s Testimony Dr. Ryan was asked by the Plaintiffs to review literature regarding national professional standards applicable to child welfare systems; to identify the standards; and to offer an opinion on the consequences if such standards were not met. Tr. I at 48. As Dr. Ryan acknowledged, his opinion was limited to assessing, according to the reviewed literature, what the general consequences of not meeting professional standards are; he did not look at the actual case records of the Named Plaintiffs. Tr. I at 49. Specifically, Dr. Ryan considered the areas of maltreatment in care; caseload size for child welfare workers; visitation between caseworkers and children in the foster care system; and placement
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array, particularly congregate care placement. Tr. I at 49. According to Dr. Ryan, based on the reviewed literature,
maltreatment in care exposes children to additional trauma, and it compromises a child’s ability to form strong attachments with adults in his or her life. Tr. I at 65. As a result of such maltreatment, a child is more likely to develop anxiety and depression. Tr. I at 70.
It was unclear to what extent some of the materials Dr. Ryan reviewed were applicable and/or relevant to the instant case. By example, Dr. Ryan discussed a 2003 GAO [U.S. General Accounting Office] report on the challenges of recruitment and retention in the child welfare workforce that was based on responses from 600 caseworkers who were retiring or leaving their positions. Tr. I at 72-74, 76-77. In forming his opinions, Dr. Ryan relied on the finding in the GAO report that such challenges, along with worker turnover, “imped[ed] progress toward the achievement of federal safety and permanency outcomes.” Tr. I at 77:8-13; Ex. 679. It is undisputed, however, that Cassie had the same caseworker for all but the first few months in DCYF care and that, with the exception of two maternity leaves, Danny had the same caseworker since he entered DCYF care.
With respect to maltreatment in congregate care, i.e. residential, non-family care, Dr. Ryan relied on a 1991 study, noting that the year of publication was not particularly important.
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Tr. I at 83, 84:3-10; Ex. 85. Based on that study, Dr. Ryan concluded that the risk of physical abuse, neglect, and sexual abuse was significantly higher in congregate care facilities. However, no connection was drawn to the Named Plaintiffs; and no evidence was submitted to suggest that Cassie suffered physical abuse, neglect, and/or sexual abuse in the residential facilities in which she was placed. With respect to Danny, any allegations of physical abuse were limited to altercations with other children who lived at the same group home.
Dr. Ryan’s assessment of the consequences of “high” caseloads for child welfare workers was based on the CWLA’s recommendation that workers have “no more than 12 cases on their daily workload, whether for investigation or for foster care placements.” Tr. I at 102:3-8. Dr. Ryan acknowledged, however, that the CWLA standards are considered aspirational. Tr. I at 102:9-18.
In sum, the studies on which Dr. Ryan relied for his opinions were, at least in part, outdated, Tr. I at 83-84, 118-119, Tr. II at 71; they were based on purely aspirational standards, Tr. I at 102; they lacked a uniform definition of a “best practices” professional standard, Tr. I at 109-110; they addressed the relationship between workplace conditions for child welfare workers and the impact on their charges only in a general manner, Tr. I at 110-115; or were primarily qualitative studies, Tr. 120-124, or personal interviews. Tr. I at 75. Moreover, Dr. Ryan failed to
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establish any connection between those studies and the Plaintiffs’ claim in this case: that the State’s alleged violation of known professional standards caused the Plaintiffs to be exposed to unlawful risks of harm. Tr. I at 45.
Accordingly, Dr. Ryan’s general conclusions, e.g., that high caseloads impact workers’ ability to do their jobs, Tr. I at 80; that the risk of abuse and/or neglect is higher in congregate care, Tr. I at 87; or that workers who are burnt out and emotionally exhausted are more likely to leave their jobs, Tr. I at 116; were inadequately supported and not specific to Rhode Island or the claims of the Named Plaintiffs. As Dr. Ryan acknowledged, none of the literature on which he relied addressed child welfare practices in Rhode Island, Tr. II at 113; he did not review the Plaintiffs’ files, Tr. II at 111; and he was not familiar with the circumstances of their placement in DCYF care or the specific services they received while in DCYF care. Tr. I at 77. Dr. Ryan’s testimony neither served to establish that Rhode Island caseworkers, generally, or the caseworkers of the Named Plaintiffs, specifically, were burnt out or unable to perform their job adequately, nor that Cassie or Danny suffered abuse or neglect during their placement in congregate care, or that they suffered harm or risk of harm as the result of high caseloads and/or caseworker burn-out.
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2. Ward’s testimony Ward’s former occupations included, inter alia, (a) child care worker in a small residential treatment facility for children in Minnesota; (b) administrative supervisor and program director of that facility; (c) assistant director of the Catholic Charities agency; (d) field office supervisor for the Illinois Department of Children and Family Services (“ILDCFS”) (for which he worked more than 24 years, primarily in administrative and/or supervisory positions); (e) regional administrator for ILDCFS; (f) administrator in the office of planning for family services; (g) manager for the regional (i.e., outside of Cook County) quality assurance program; and (h) COA reviewer. Following his retirement from ILDCFS in 2002, Ward continued to work as a consultant for the U.S. Department of Health and Human Services (HHS) in its Children and Family Services Review (CFSR) team. In his capacity as a consultant, Ward conducted CFSR reviews for HHS with regard to a number of states (not including Rhode Island or any other New England state).
Ward was engaged by the Plaintiffs to offer opinions about the following six areas: (1) maltreatment of children while in care; (2) CPS [Child Protective Services] investigations into allegations of abuse and neglect, including allegations that abuse and neglect occurred in foster care; (3) child welfare services caseloads; (4) visitation and contact between a child and the
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child’s assigned caseworker; (5) in-service training; and (6) congregate care and placement array. Tr. IV at 51:23-52:13.
(a) Maltreatment in Care With regard to maltreatment of children in care, Ward pointed to a 2011 publication by the Children’s Bureau section of HHS, which specifies a national standard for the absence of maltreatment in foster care as 99.68 percent. Tr. IV at 94-95, Ex. 590 at 24. Based on the chart provided in that publication, Ex. 590 at 55, Ward concluded that Rhode Island’s rate of absence of maltreatment in care failed to meet the national standard in every year between 2007 and 2011. Tr. IV at 97.19 According to the same chart, only 24 states (of 49 who reported this figure) met the national standard in 2011. Tr. IV at 101; Ex. 590 at 55. Ward also stated that—when compared to other reporting states—Rhode Island was among the six states with the highest reporting rate of maltreatment in care between 2006 and 2011. Tr. IV at 116. Ward then addressed the State’s contention raised in response to the data, which the State attributed to the presence of three factors: (1) Rhode Island’s broad statutory definition of maltreatment,
19
Ward created a chart to represent the data visually after subtracting the rate of absence of maltreatment from 100 percent. Ex. 714; Tr. IV 102, 105. The same information for years 2007 and 2010 is also set forth in the Child Welfare Outcomes Report to Congress, Ex. 607.
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see R.I. Gen. Laws § 40-11-2; (2) Rhode Island’s requirement that everyone report abuse and neglect, see R.I. Gen. Laws § 40-11-3; and (3) Rhode Island’s lower standard for a report of maltreatment to be substantiated, see R.I. Gen. Laws § 40-11-2. Tr. IV at 117. In considering that response, Ward conducted a comparison of 2011 maltreatment rates between Rhode Island and five other states whose definition of abuse and neglect he considered “similar,” Tr. IV at 125-127:1-5, specifically New Jersey, Ohio, South Carolina, West Virginia, and Wyoming. Tr. IV at 127:7-9. Ex. 715. Ward then conducted a separate comparison of Rhode Island’s maltreatment numbers to several states which also have a universal mandated reporter law, Tr. IV at 131; Ex. 716. Finally, Ward conducted a third and separate comparison of Rhode Island’s performance to states that apply the same preponderance standard for substantiating a maltreatment report. Tr. V at 14-19; Ex. 717. Based on these three comparisons, Ward rejected the State’s explanation for its malpractice rate. It is evident, however, that Ward’s analysis was conceptually flawed. Rhode Island’s broad definition, mandatory reporting requirement, and low standard of proof must be considered in the aggregate, not in separate comparisons in regard to each factor. When all three factors are included in the comparison, Wyoming is the only state (at least on
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the surface) among those identified by Ward to have some commonality with Rhode Island on each of the three issues. Ex. 715, 716, 717. However, Ward had to concede that the definition of abuse in Wyoming required that any injury or harm be “other than by accidental means,” which is not part of Rhode Island’s broad definition. A review of the statutory definition of “abuse” in New Jersey, Ohio, South Carolina, and West Virginia also revealed that definitions in those states all differ significantly from that set forth in Rhode Island’s statute. Tr. VIII at 96-97. Similarly, Rhode Island does not practice what is referred to as “differential response;” i.e., a report of possible abuse or neglect in Rhode Island is always followed by an investigation, not just an assessment. Tr. VIII at 82. In states that do practice differential response, any allegations assessed as low- and moderate-risk would not be counted as substantiated matters. Tr. VIII at 83. Wyoming, the only state that appears comparable to Rhode Island on all three factors, is one of the states that practice differential response, Tr. VIII at 98. Ward did not review practices of other states to which he compared Rhode Island. Tr. VIII at 99-100.
Ward agreed that the Children’s Bureau Report (Ex. 607), on which he relied for his conclusions, explicitly acknowledged that alternative response approaches and types of maltreatment reported are known factors that cause variation in child victim rates. Tr. VIII at 73-75. Ex. 607 at 6. Ward also acknowledged that state laws
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and policies differ in regard to maltreatment and in defining of who is a mandatory reporter, but he conceded that he did not review policies or regulations of the states to which he compared Rhode Island. Tr. VIII at 77-78.
In sum, Ward’s simplified analysis failed to support his assertion that Rhode Island’s numbers were significantly unfavorable when viewed in comparison to other reporting states. More significantly, Ward’s testimony and conclusions failed to connect Rhode Island’s maltreatment statistics to any harm or injury alleged by the Named Plaintiffs.
(b) CPS Investigator Caseloads Regarding CPS investigator caseloads, Ward related that (in his prior role as administrator) if he learned that caseloads exceeded the limits suggested by CWLA or COA, Tr. V at 22, he would investigate further and possibly shift staff between teams or ask for help from outside the region. Tr. V at 26-27, 34-36. As explicitly stated in the COA, its suggested caseload limit of fifteen investigations per caseworker has some built-in flexibility. Although “[g]enerally, caseloads do not exceed 15 investigations or 15-30 open cases . . . there are circumstances under which caseloads may exceed these limits.” COA Standards PACPS 14.05, Ex. 50. Specific to Rhode Island, Ward reviewed provisions of the Rhode Island Code, R.I. Admin. Code §§ 14-1-500.0095 (Ex. 890), 14-
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1-500.0060 (Ex. 891), 14-1-500.0110 (Ex. 892), 14-1-500-0055 (Ex. 893); 1995 CWLA provisions 5.9 (Ex. 31) and 1.19 (Ex. 27); and COA provisions PA-CPS 5.07 (Ex. 50A) and PA-CPS 14.05 (Ex. 50). Tr. V at 99-112. Against this background, Ward reviewed DCYF internal report 259 (Ex. 881B), which listed, inter alia, the number of investigations by a subset of DCYF caseworkers. Tr. V at 118. For each caseworker, Ward added the figures stated for the categories of investigations pending, investigations overdue, and investigations created, plus the category of augment assignments. Tr. V at 124. For each month, Ward then calculated how many caseworkers had investigations in excess of fifteen, the COA recommended number that Ward used as a baseline. Tr. V at 125. From this calculation, Ward concluded that the CPS investigative staff in Rhode Island was extremely overburdened, and he stated that his data “strongly suggests that there can be risk associated to individual children.” Tr. V at 137:18-19.
When questioned how he determined the relationship between CPS caseloads and the impact on children, Ward explained the process as follows:
The process is that in -- that would be from two points, two vantage points. Number one, that might be part of the -- one of the factors that we used in defining the cases that we would review. The second thing is that we could look at that and if I looked at cases, when we looked at cases, in other places where it didn't seem to be happening but we were just checking to make sure. Certainly the caseload ratio compared there to the other places that we reviewed would be a factor. And when you went back and looked based on
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the times that we did that, when we went back and looked, we saw pretty straight correlation between when that size starts increasing, the ability to do all the work decreases, and in the worst case scenario it's impacting the safety of an individual child. Tr. V at 38:2-17.
Although Ward suggested that caseloads over fifteen per investigator might be problematic, see Tr. V at 30, his testimony was based entirely on his own experience in Illinois. Ward’s general conclusion that there was a correlation between increase of case load and ability to do all the work lacked any kind of quantitative analysis; it was also entirely unconnected to Rhode Island practices or to Cassie and Danny or any of the other Named Plaintiffs specifically.
(c) Timely Completion of CPS Investigations Ward engaged in a similar exercise with regard to the timeliness of investigations as he did for caseload size, Tr. V at 137, noting that the Rhode Island Code provides for completion of an investigation within ten days (subject to additional, approved extensions up to thirty days), see § 14-1-500-0055, whereas the COA provision allows for thirty days. Tr. V at 139. For this analysis, Ward defined as “overdue” any investigation that was not completed within ten days, Tr. V at 142:7-11. He acknowledged, however, that he did not know whether “investigations pending” included a time limit of ten days, Tr. VIII at 111; he also acknowledged that he did not subtract from the total number of investigations any completed cases. Tr. VIII at 116. Ward then conducted a calculation
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of what proportion of DCYF investigations was overdue, Tr. VI at 6, but drew no connection to any of the Named Plaintiffs or to the impact such alleged untimeliness might have had on them. Tr. VI at 7-16. Instead, based on his experience of evaluations of Illinois cases that took longer than thirty days to complete, Ward drew the connection between untimely completed investigations and child safety as follows:
If the time that was -- if the investigations took longer than the 30 days and it was associated with that investigator having more investigations than what they should have, ideally the 15, there was a strong causation back to that issue of that's why it was not getting done, because a worker doesn't have enough time to do all the things that they need to do to complete all the investigations assigned to them. And in individual cases, that can certainly lead to the risk back to that child who was the subject of the investigation. Tr. V at 62:1222. As such, Ward’s explanation was indistinguishable from the impact of a caseload in excess of the COA suggested limit; it was based entirely on Ward’s own experience in Illinois; and it was unsupported by any kind of quantitative analysis or objective process that would have allowed him to arrive at such a conclusion. In addition, Ward did not review the activities of Rhode Island’s CPS service, Tr. VIII at 105, and it was undisputed that he did not review Cassie’s or Danny’s case file. (d) Family Service Worker Caseloads Ward’s testimony regarding the caseload of family service workers (in Rhode Island, “FSUs”), who are the primary caseworkers
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for children in DCYF care, was in the same vein. Tr. VI at 17. Ward reviewed the COA provisions and CWLA standards of excellence on caseloads for family service workers, Tr. VI at 23-25; and he related his experience with monitoring caseloads in Illinois, Tr. VI at 25-41, and as a COA accreditation consultant for Missouri and Tennessee, Tr. VI at 42-47. Ward then reviewed R.I. Admin. Code §§ 14-1-700.0165 (Ex. 894), 14-1-700.020 (Ex. 895), 14-1-700.0030 (Ex. 896) and 14-1-700.0075 (Ex. 897), which describe the work duties of FSU workers. Tr. VI at 48-50.
The CWLA’s aspirational standards call for a caseload between twelve and fifteen cases. Ex. 17. COA provision 19.06 states that “generally,” caseloads do not exceed eighteen children, but the COA notes that “there are circumstances under which caseloads may exceed these limits.” Ex. 55 at 55. As noted by Ward, the collective bargaining agreement (“CBA”) between the State and the Rhode Island Alliance of Social Service Employees provides that the “state shall endeavor to achieve a caseload assignment not to exceed fourteen (14) families.20” (Ex. 482 at 18). The testimony of DCYF administrator Stephanie Fogli-Terry indicated that DCYF “strive[s]” to have a caseload of fourteen cases per worker. Tr. VI at 68. Ward reviewed FSU caseloads by supervisor and region, added the numbers, and provided visual summaries as to number and
20
It is noted that the CBA speaks in terms of “families,” not “children;” Ward conceded that the CBA figure was “not as firm as a hard-and-fast caseload number.” Tr. V at 63-64.
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percentage of FSUs with caseloads of more than eighteen children. Tr. VI at 78-83; Ex. 724. Ward conceded that any conclusions he had formed on the impact of caseloads in excess of eighteen children were limited to his experience in Illinois and they were, essentially, anecdotal. Tr. VII at 19, 22-23. Ward suggested that, at some point, things would start to “slip,” but he agreed that he could not quantify where that point was, in part because that depended on the experience of the caseworker and the complexity of the case. Tr. VII at 37:19-38:7. Ward also conceded that he did not review the deposition testimonies of Cassie’s or Danny’s social caseworker on that subject, Tr. XVI at 54, and he did not offer an opinion that either Cassie or Danny were harmed as the result of the caseloads of their respective social workers.
(e) In-Service Training Regarding in-service training, the CWLA indicates that an inservice training program “should focus on the improvement of the practice competence of staff members.” Tr. VII at 56-57, Ex. 36 at 70. Rhode Island law requires DCYF to “establish a minimum mandatory level of twenty (20) hours of training per year and provide ongoing staff development for all staff.” R.I. Gen. Laws 42-72-5(b)(10). Rhode Island Admin. Code § 14-1-400.0000 has the same 20-hour requirement. Tr. VII at 58; Ex. 898. According to the September 2010 Rhode Island CFSR [Child and Family Services Review], ongoing training for staff was identified as an area
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needing improvement because only 27.7 percent of 491 DCYF caseworkers had completed their ongoing training requirements. Tr. VII at 61; Ex. 616 at 102. Ward noted that his figures were based on data provided for 41 caseworkers only21, which he described as a “very small sample,” and not for DCYF’s entire caseworker staff. Tr. VII at 85:5-8. Ward offered no opinion on the impact of a shortfall in training hours on children in DYCF care.
(f) Face-to-Face Visits The CWLA aspirational standard, on the premise that a social worker “is a vital constant in the life of a child in foster care,” suggests that “[t]he family foster care social worker should visit the child at least monthly.” Tr. VII at 96-97; Ex. 16 at 54. COA provision PA-FC 12.01 states that “the family foster care worker meets separately with the child and the parents at least once a month to: a. access safety and well-being; b. monitor service delivery; and c. support the achievement of permanency and other service plan goals.” Tr. VII at 98-99; Ex. 55A. States that have developed a plan for child welfare, which renders them eligible for subsidies from the federal government, must meet certain requirements regarding caseworker visits. 42 U.S.C. §
21
As Plaintiffs’ counsel explained, the 41 caseworkers whose training records Ward reviewed were assigned to the Named Plaintiffs in this litigation. It is unclear how many of them were actually assigned to Cassie and Danny.
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624(f)(1)(A).22 The Rhode Island Administrative Code provides that it is
DCYF’s policy “to ensure that children in foster care are visited at least once per month, or more frequently as needed, to ensure their safety, well-being and attainment of their permanency goals.” R.I. Admin. Code 14-1-700.0165 (Ex. 894); Tr. VII. at 100. The Code further explains that “[t]he worker must have face to face contact at least one time per month with each child in foster care and the majority of monthly visits must take place in the child's foster home or foster placement. The worker should speak with the child alone.” R.I. Admin. Code 14-1-700.0165; Ex. 894 at 2.
The Children’s Bureau Final Report for the September 2010 Rhode Island Child and Family Services Review reflects that, based on a random sample of 65 cases, caseworker visits was an area identified as needing improvement. Ex. 616A. Specifically, for 40 foster care cases included in the report, the required number of visits was at a 77.5 percent compliance rate (compared to the 90 percent required for federal funding).
22
Subsection 624(f)(1)(A) provides as follows: Each State shall take such steps as are necessary to ensure that the total number of visits made by caseworkers on a monthly basis to children in foster care under the responsibility of the State during a fiscal year is not less than 90 percent (or, in the case of fiscal year 2015 or thereafter, 95 percent) of the total number of such visits that would occur during the fiscal year if each such child were so visited once every month while in such care. 42 U.S.C. § 624(f)(1)(A).
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A DCYF report for March 2012 summarized the number of children without a documented face-to-face visit for that particular month. Ex. 881H at 31. The DCYF’s 2011 Annual Progress and Services Report acknowledges that the percentage of face-to-face visitation has been “an ongoing challenge;” it also reflects that, although performance fell short of the projected increase, DCYF demonstrated “continued improvement” every year between 2007 and 2010. Ex. 622 at 76.
Ward reviewed this information; added up the number of children in four Rhode Island regions who had received a face-toface contact each month between January 2010 and March 2012; calculated the percentage rate based on the total number of children in foster care; subtracted that percentage from 100 and created a summary chart. Tr. VIII at 119-122. Put another way, Ward took the percentage of children who had received monthly visits from the DCYF report and converted the information to depict the percentage of children who did not have visits. Ex. 728. Ward did not offer an opinion on whether the performance data in Rhode Island with regard to worker-child visitation creates a risk of harm to foster children. None of the submitted information was specific to Cassie and Danny.
(g) Placement Arrays and Reentry Federal regulations require DCYF to have procedures in place that “[p]rovide, for each child, a written case plan to be
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developed jointly with the child's parent(s) that includes provisions: for placing the child in the least restrictive, most family-like placement appropriate to his/her needs, and in close proximity to the parents' home where such placement is in the child's best interests;...” 45 C.F.R. 1355.34(c)(2). COA provision PA-RTX 1 recommends that
“[t]he agency make[] every effort to ensure residential treatment services are available only when a thorough assessment of current need and prior services indicate an individual requires, and will benefit from, a total milieu environment, active psycho-therapeutic and psycho-educational interventions, and around the clock care for a specified period of time.” Ex. 62 at 3.
In addition, COA provision PA-FC 16.02, which addresses recruitment and retention of foster families, states that “[r]ecruitment efforts are planned, implemented, and evaluated to ensure a suitable family is available for each child entering care.” Ex. 55B at 40. The CWLA adds that “[t]he goal of any residential care provider is to maintain the child for the shortest appropriate time frame, and successfully discharge each child to a less restrictive setting or level of care.” Ex. 24 at 37.
Ward reviewed DCYF reports from January 2010 through April 2012, which documented the number of children placed by DCYF in various living arrangements, including foster care, independent living, group home, shelter, residential, psychiatric, medical, and RITS [Rhode Island Training School]. Ex. 396, 397, 398. Ward’s defined category of “congregate care” included placement in a group
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home, residential shelter, psychiatric, or medical hospital, Tr. VIII at 18:21-24. Ward created another summary chart to visually represent the percentage of children in congregate care between January 2010 and April 2012. Ex. 733; Tr. VIII at 19.
Ward then conducted a comparison between the percentage of children in Rhode Island placed in what he defined as “congregate care” with national data stated in the July 2012 AFCARS [Adoption and Foster Care Analysis and Reporting System] Report, Ex. 600, Tr. VIII at 28-30; and he summarized this comparison in a bar chart. Tr. VIII at 31-33; Ex. 735. According to Ward’s summary chart, the rate of congregate care in Rhode Island is higher than the national rate; it is not discernible from Ward’s chart, however, what the exact figures are. Ex. 735.
The final subject of Ward’s testimony was “reentry” of children into DCYF care, which he defined as “when the child comes back into care . . . what options are available . . . to meet that child’s individual needs and satisfy the least restrictive requirement from HHS.” Tr. VIII 35:4-9. To discern the percentage of children reentering foster care in Rhode Island between 2008 and 2011, Ward first downloaded context data for Rhode Island from the HHS website. Ex. 881E at Section 4.2. For the 2012 year, Ward reviewed the “2013 Rhode Island Kids Count Factbook” Ex. 777, published by a children’s policy organization. According to Ward’s review, the percentage of children re-entering foster care between
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2008 and 2012 ranged between 15.3 percent and 19 percent. Ex. 736; Tr. 38-40. Ward compared those figures to what he described as the “federal standard for reentry,” 8.6 percent; however, it was unclear from his testimony what that number signified.
Upon question by the Court, Ward suggested that the 8.6 percent figure was part of a federal funding provision, but he could not explain how Rhode Island numbers would impact funding. Tr. 42 (“I can’t speak to those percentages; but if you’re above that 8.6, there’s going to be–-they’re going to have some conversations, and it’s going to be around funding.”). Ward offered no opinion on why there might be a higher percentage of children reentering care in Rhode Island, or on the impact a higher rate might have on children in DCYF care. More significantly, however, neither Danny nor Cassie were ever returned to their biological homes; accordingly, the issue was not relevant to the Named Plaintiffs’ claims.
Finally, at the request of Plaintiffs’ counsel, Ward read into the record testimony by DCYF Director Dr. Janice DeFrances at a March 28, 2013 hearing before the Rhode Island House Committee on Finance:
But we do have some children that we want to be able to step down, but access into more community-based services or support right now is not readily available. We also need desperately and we are doing a statewide recruitment for more foster homes. That clearly is something where we would want to be able to put a child in a foster home but also support those foster homes with appropriate training, education, financial support, mental health
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support, crisis support and respite; and that is a statewide initiative that all the state quarters providing foster care in Rhode Island are working together on. Tr. VIII at 56:10-21.
Plaintiffs sought to admit Dr. DeFrances's testimony as a party admission. Tr. VIII at 53. Although Ward explained that he relied on the testimony, he did not further discuss its relevance to the Named Plaintiffs’ claims in this case. Tr. VIII at 57.
When viewed in its entirety, Ward’s testimony established that DCYF has policies and procedures in place to address all the areas Ward discussed. It is also apparent that there is room for improvement in adhering to those policies and procedures, which DCYF recognizes and strives for. Nowhere in his testimony, however, did Ward draw a connection between shortcomings in DCYF’s record of achieving certain established goals and any harm or risk of harm to Cassie or Danny, the other Named Plaintiffs, or to any other foster children in DCYF care.
Ward’s review of Rhode Island statutes and regulations, and his related comparisons to legislative or administrative processes in other states were incomplete and, in significant part, erroneous. There can be no doubt that Ward has significant experience in the child welfare arena. However, Ward’s experience was limited primarily to administrative positions; it was, in part, outdated; and it could not serve to replace an actual determination of what impact alleged under-performance by DCYF, e.g. large
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caseloads or CPS investigations completed beyond set time limits, had on foster children in Rhode Island. Moreover, Ward’s conclusions in the areas he addressed were based on flawed statistics, incomplete information, and arbitrarily chosen samples and/or categories. As such, Ward’s testimony, although extensive, did little to support the Plaintiffs’ efforts to withstand the State’s Rule 52 motion.
3. Dr. Chambers’ Testimony23 Dr. Chambers is an associate professor at California State University Long Beach School of Social Work, Tr. XIII at 27. She practiced as a licensed social worker for twenty years, Tr. XIII at 20, not, however, in a public child welfare agency. Tr. XIII at 43. Dr. Chambers conducted a review of Danny’s and Cassie’s DCYF case files with the aim to examine DCYF casework practices during the Plaintiffs’ time in DCYF care. Tr. XIII at 17. Dr. Chambers did not seek to offer an expert opinion; rather, she described what she found in the case files. Tr. XIII at 56-57. Specifically, Dr. Chambers focused on the following areas: (1) entry into DCYF care, including investigations and reasons for removal; (2) case management and service planning; (3) visitations; (4) placement and
23
Although the Plaintiffs presented Dr. Chambers as an expert witness and the State was permitted to conduct a voir dire of this witness, following the voir dire, the Plaintiffs asserted that they would not seek to elicit an expert opinion from Dr. Chambers. Tr. XIII at 56:18-57:7.
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safety incidents; (5) services for the child and family; and (6) permanency hearings, administrative reviews, and termination of parental rights. Tr. XIII at 59.
In order to conduct a review of Danny’s and Cassie’s DCYF files, Dr. Chambers constructed a “case reading tool,” to assist her in organizing and/or quantifying the topic areas on which she directed her focus. Tr. XIII at 61:13-17. Dr. Chambers identified a number of federal statutes and/or regulations, as well as DCYF policies that addressed elements of DYCF care, i.e., case plans, Tr. XIII at 68; caseworker visits, Tr. XIII at 68; sibling visits, Tr. XIII at 71-72; foster placements, Tr. XIII at 72-73; services for child and family, Tr. XIII at 73-74; and permanency hearings, Tr. XIII at 74. To verify the validity of the reading tool, one of Dr. Chambers’ colleagues used the reading tool to review a sampling of another case file to verify whether she arrived at similar results as Dr. Chambers. Tr. XIII at 75, Tr. XIV at 96. Dr. Chambers acknowledged that she did not review any records from third parties outside DCYF case files24 such as reports from mental health providers or the schools the Plaintiffs attended. Tr. XIII at 81.
Based on her review, Dr. Chambers came to a number of
24
Dr. Chambers acknowledged that she reviewed only hard copies and printed screen shots of the DCYF case files for Cassie and Danny; she did not view their electronic case files as they are maintained by DCYF. Tr. XIV at 67-68, 76.
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conclusions regarding Danny’s care in DCYF custody. She concluded that during his fifteen and a half month stay at the LF home, Danny did not receive a single visit from his social worker. Tr. XIII at 118-119. Dr. Chambers also noted that there was no indication in Danny’s case file that DCYF conducted an investigation whether the SM group home exercised proper supervision over Danny. Tr. XIII at 133. According to Dr. Chambers, Danny was in DCYF care for four to five months before he received mental health treatment. Tr. XIII at 133. She also concluded that, according to the case file, Danny’s first service plan was not developed until four months after Danny came into DCYF care, Tr. XIII at 173, and that his service plans were not promptly updated every six months. Tr. XIII at 174. 25
With respect to Cassie, Dr. Chambers stated that she saw no documents indicating a kinship26 search prior to Cassie’s first placement, and that Cassie was never placed with any of her sisters while in DCYF care. Tr. XIV at 5, 7. Dr. Chambers also noted that Cassie apparently had no face-to-face visits with her caseworker during her eleven-months stay at the M home and during her six-
25
The record reflects that the Court reconsidered a ruling in which it sustained an objection by the State to Dr. Chambers’ expected response that, according to her case file review, DYCF did not consider specialized foster care placement before placing Danny into a group home. Tr. XIV at 3.
26
In the context of Dr. Chambers’ testimony, a “kinship search” appeared to refer to investigating the possibility of placing Cassie with biological family members. Tr. XIV at 5-6.
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month stay at the J home. Tr. XIV at 13, 16. After Cassie was removed from her biological home, but prior to the termination of her parents’ parental rights, the stated permanency goal was reunification. Tr. XIV at 57. Cassie’s service plans from that time reflect that, in order for reunification to take place, Cassie’s mother had to comply with a number of services, e.g. participate in treatment for domestic violence and substance abuse, parenting education classes, and mental health counseling. Tr. XIV at 58-59. With respect to Cassie’s other service plans, Dr. Chambers indicated that seven of twelve service plans were unsigned, Tr. XIV at 61, and that nine of those plans were not updated within a sixmonth period. Tr. XIV at 62.
Dr. Chambers pointed out that Cassie’s December 2001 service plan reflects that her present placement at the TH group home was not the least restrictive. Ex. 89-B at 2, Tr. XIV at 17-18. However, the plan further explains that “[Cassie] is in residential placement as two different foster homes were not able to provide for [Cassie’s] needs due to her behaviors.” Ex. 89-B at 2. Tr. XIV at 19. According to Chamber’s review of the case file, Cassie was frequently restrained while at the TH home, Tr. XIV at 22-23, and she received psychotropic medications, two of them for sleep. Tr. XIV at 25. According to Dr. Chambers, although Cassie was under close supervision at the LH home, there were two recorded incidents
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in which she acted out sexually.27 Tr. XIV at 40-41. As Dr. Chambers acknowledged, her review was limited to
Danny’s and Cassie’s case files, e-mail correspondence by DCYF, and deposition testimony in this case; Dr. Chambers did not obtain full and complete records of the various placements, caregivers, or treating providers, nor did she conduct any personal interviews. Tr. XIV at 92-93. As a result, it became apparent in the course of her testimony that Dr. Chambers’ review of the case files left her with a less-than-complete picture of the care and services Cassie and Danny received while in DCYF care.
Based on the information at her disposal, Dr. Chambers concluded that Danny had not exhibited any sexualized behavior prior to leaving the LF home, Tr. XIII at 98. However, a deposition of Danny’s caseworker—which Dr. Chambers had reviewed in the course of her work—made note that Danny exhibited such behavior during his initial placement with his great-grandmother. Tr. XIV at 109. According to the case files, DCYF also explored placement of Danny with his aunt and uncle, but their respective criminal histories precluded such a placement. Tr. XIV at 117. While Danny was placed at the LF home, he received counseling services from an LCSW [licensed clinical social worker] and additional educational support; he also had court-ordered bi-monthly visits with his
27
These incidents actually took place at the TH group home. Tr. XV at 54-55.
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parents. Tr. XIV at 118-119. On those occasions, Danny’s social worker picked him up at the LF home and drove him to the visits with his parents. Tr. XIV at 119. In addition, documentation (other than case activity notes) indicated that the caseworker had numerous visits with Danny; Dr. Chambers, however, did not count these contacts as “face-to-face” visits. Tr. XV at 22, 27-35. Likewise, Dr. Chambers did not count a number of visits at the LF or the T home, although those visits were recorded as “FtF” in the case activity notes. Tr. XV at 36-43.
According to Dr. Chambers, she saw no indication in Danny’s case file that DCYF offered services to the great-grandmother to assist her in fostering Danny, Tr. XIV at 121. However, the case file contains at least two authorizations for services, documenting that DCYF was authorizing funding for day care as well as other services for the great-grandmother. Tr. XIV at 122-123. After placement at the LF home was not successful, court letters from that period indicate that Danny’s placement in a group home was based on his problematic behaviors. Tr. XIV at 125.
Dr. Chambers also related that there appeared to have been no formal CPS investigation into allegations by Danny that he had been punched by a prospective adoptive father of the J family. Tr. XIII at 123-124. Danny’s case file documented that the DCYF supervisor was informed by an adoption worker of Danny’s allegation and that the J family denied the allegations. The case file also indicated
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that this placement was arranged by a private adoption agency in Connecticut, over which the Rhode Island DCYF had no jurisdiction. Tr. XIV at 127.
Regarding the second pre-adoptive family for Danny, Dr. Chambers indicated that Danny was placed with the family despite the family’s position that the family did not want a child with learning disabilities or developmental delays and that they wanted a Caucasian child (Danny is of mixed race). Tr. XIII at 183-184. According to the case file, however, the family reviewed and signed a full disclosure document before agreeing to have Danny placed in the home. Tr. XIV at 128-129.
Dr. Chambers noted that, during Danny’s first stay at a group home, he was “physically restrained multiple times.” Tr. XIII at 149:3-4. Case activity notes from that time period documented that Danny was placed into a therapeutic hold after he was assaultive to staff and after charging at another child. Tr. XIV at 135-136. An incident involving inappropriate contact between Danny and another child at that home became the subject of a CPS investigation. Both children were interviewed and acknowledged the event, which was deemed consensual; a staff member was indicated for failure to supervise. Tr. XIV at 137-138. The record further revealed that, after Danny was tackled and punched by another child at the group
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home, Danny’s covering28 social worker, JB, called the hotline to report this and another incident involving Danny. Tr. XV at 13. JB also followed up with Danny’s clinician, as did Danny’s regular social worker upon her return from maternity leave. Tr. XV at 6-7. As a result, the level of supervision for both Danny and the other child involved in the incident was increased. In addition, Danny was separated from the other child and moved to a different class room. Tr. XV at 11-12.
With regard to Cassie, Dr. Chambers was unaware that Cassie was placed with her two half-sisters at the DM home. Tr. XV at 50. The record also showed that Cassie was restrained at the TH home because she was hitting or kicking staff and because she engaged in unsafe behavior (including jumping from the headboard of her bed to the toy box and then running toward an open window.) Tr. XV at 5152.
While Cassie was at the TH home, DCYF considered moving her to a specialized foster home; however, the Family Court, upon motion by Cassie’s CASA, ordered Cassie to remain at the TH home until the end of the school year. Tr. XV at 52-53. Both documented incidents of sexual acting out by Cassie resulted in CPS investigations. Tr. XV at 54. As a result of one of the investigations, a staff member was terminated, Tr. XV at 54; the other investigation resulted in
28
The social worker was covering for Danny’s regular social worker, who was on maternity leave at that time. Tr. XV at 6.
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an unsubstantiated finding. Tr. XV at 56. In regard to face-to-face visits between Cassie and her social
worker while Cassie was living in different homes, Dr. Chambers acknowledged that there were numerous occasions on which Cassie had meetings with her social worker that Dr. Chambers did not include as face-to-face visits in her tally, even when those meetings were noted as “FtF” in case activity notes. Tr. XV at 63-69. Dr. Chambers explained that she did not count those occasions because she believed that they did not meet the criteria of private, individualized meetings, Tr. XV at 87; she acknowledged, however, that she had no further information as to what occurred in those meetings. Tr. XV at 90, 91.
Regarding the completeness and timeliness of individualized service plans, Dr. Chambers acknowledged that such plans were created for both Cassie and Danny (although not always within the requisite six-month period), see Ex. 90 and Ex. 130, and that DCYF files the services plans with the Family Court for approval. Tr. XIV.
As acknowledged by Plaintiffs’ counsel prior to Dr. Chambers’ testimony, Dr. Chambers did not offer an expert opinion on the adequacy of DCYF casework practices during the time Danny and Cassie have been in DCYF care. Rather, Dr. Chambers discussed selected observations from her review of Danny’s and Cassie’s case files, which appeared to suggest that DCYF’s responses to Danny’s
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and Cassie’s individual needs and challenges were not always adequate. However, a closer look at the record revealed that DCYF did, in fact, have measures in place to identify and address issues Cassie and Danny encountered while in a particular placement. At most, Dr. Chambers’ testimony raised a question of whether DCYF records were always timely and complete and whether they always reflected accurately what care or services had been provided; it did not support the Plaintiffs’ contentions that either Cassie or Danny were harmed or subjected to an unreasonable risk of harm while in DCFY care. Moreover, the voluminous record on which Dr. Chambers relied was limited to print-outs of DCYF case files and did not provide a complete picture of DCYF practices. In sum, Dr. Chambers’ testimony was insufficient to support the Plaintiffs’ claims under the AACWA.
4(a) The Forensic Clinical Evaluation Prior to considering the testimony offered by Dr. Adamakos, the Court finds it necessary to discuss the events that led to the evaluations and interviews Plaintiffs’ expert witness conducted with Cassie and Danny and which caused this Court grave concern.
On July 27, 2012, Plaintiffs’ counsel first sought an order compelling the State to allow the Named Plaintiffs to be evaluated by the licensed forensic psychologist Children’s Rights had
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retained as an expert witness,29 such evaluation (including up to nine hours of interviews of each Plaintiff, as well as psychological testing) to be conducted by Dr. Adamakos, a psychologist who had not yet reviewed the Plaintiffs’ case files at that time. (Dkt. No. 151-2). The State objected to the request and the Court conducted a hearing on the matter on September 10, 2012. At the hearing, Plaintiffs’ counsel acknowledged that the each of the Plaintiffs already had undergone, and was continuing to undergo, psychological and psychiatric treatment, Tr. 09/10/12 at 5:1-5. Plaintiffs’ counsel acknowledged that the Plaintiffs’ treating providers had not been noticed for deposition, id. at 6:20-22, but suggested that the proposed examination by Dr. Adamakos was to be “focused on the harm that is caused, if any, by the actions or omissions of the Defendants.” Id. at 7:3-5. Counsel also took the position that the examination would not be intrusive, id. at 9:2-3 and that Dr. Adamakos would be able to “tease out” the harm created by alleged injuries in DCYF care versus those the Plaintiffs had suffered in their biological families. Tr. XI at 13:12-17, 14:3-13. Plaintiffs’ counsel also took the position that “it is the role of the Next Friends to determine what is in the best interest of the children,” id. at 20:1-4; and counsel
29
Dr. Adamakos acknowledged on cross-examination that he was hired by Children’s Rights, not by the Named Plaintiffs or their Next Friends, and that he obtained his license to practice in Rhode Island in 2013, in anticipation of testifying in this litigation. Tr. XI at 105-107.
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acknowledged that neither the Plaintiffs’ treatment providers, guardians ad litem, current foster families, or group home personnel had been contacted regarding the proposed evaluation. Id. at 12:5-13:9. The Court pointed out to Plaintiffs’ counsel that the Named Plaintiffs (who had been in treatment throughout their time in DCYF care), had not asked to be part of this lawsuit and that they had not agreed to this most intrusive sort of evaluation. Id. at 10:13-17. In the absence of (1) more specific details in Plaintiffs’ counsel’s request regarding the proposed evaluation; (2) evidence that the Next Friends had been adequately informed before consenting to the evaluation; and (3) confirmation by the Named Plaintiffs’ treating psychologists or psychiatrists whether further evaluation was even necessary or could be harmful, the motion was denied. Id. at 21:3-22:8.
On November 20, 2012, Plaintiffs’ counsel renewed the motion requesting evaluation of the Named Plaintiffs. (Dkt. No. 207). In the memorandum supporting the motion, Plaintiffs’ counsel represented that, in Dr. Adamakos’s expert opinion, “the requested evaluations will be minimally intrusive, will not interfere with any ongoing treatment and will carry minimal risk of harm to the Named Plaintiffs.” (Dkt. 207-1 at 2). Next Friends Professor Elliot and Ms. Irons provided nearly identical declarations in which each of them expressed a belief that the proposed psychological examinations were “in the best interests of [Cassie, Tracy, and
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Danny] and are necessary in order to vindicate their rights in this litigation.” (Dkt. No. 207-4 at ¶8, 207-5 at ¶8). Dr. Adamakos submitted a declaration pursuant to 28 U.S.C. §174630 in which he assured the Court that he would end the session or the testing immediately if a child did not want to continue speaking with him. Adamakos Declaration at 7 (Dkt. No. 208). On August 14, 2013, the Court conducted a telephonic hearing on Plaintiffs’ counsel’s renewed request for evaluation and the State’s objection thereto. The Court suggested to the State that Tracy (who had turned eighteen) and Cassie (who was close to seventeen) should have a say in whether they wished to submit to the evaluation. Tr. 08/14/13 at 19:16-21. The Court also instructed Plaintiffs’ counsel to ask the Plaintiff’s treaters whether the testing would have any sort of deleterious effect on the current well-being of the Plaintiffs. Id. at 17:15-21.
At a second telephonic conference on September 10, 2013, the motion for evaluation by Dr. Adamakos was granted as to Danny B.; the parties also agreed that the interview with Danny should be videotaped.31 Tr. 09/10/13 at 11:12-12:5. With regard to Cassie and
30
28 U.S.C.§ 1746 provides for unsworn declarations under penalty of perjury.
31
Subsequent to this hearing, the Court entered an order that placed all video recordings under the Court’s protection, limited their dissemination, and provided for their eventual destruction. (Dkt. No. 408).
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Tracy, the motion remained pending until both had given their consent to the evaluation. Id. at 12:17-24.
After both Tracy and Cassie had consented to undergo the evaluation and all the treating physicians and psychologists agreed that the proposed evaluation and testing would not have a deleterious effect on the Named Plaintiffs32, the Court granted the request for evaluation in a further telephonic conference on September 24, 2013. Tr. 09/24/13 at 2:18-24. During that conference, Plaintiffs’ counsel confirmed that “the children have all been told that they can discontinue the eval [sic] at any time.” Id. at 3:12-17 (“And Dr. Adamakos has also said he will, of course, as he always would, inform the children of that as well at the beginning of the evaluation.”)
As it turned out, Dr. Adamakos did not inform Danny or Cassie that they could terminate the evaluation at any time.33 Tr. XI at 126. Dr. Adamakos conceded that he had represented in his declaration that he would terminate the evaluation and inform the Plaintiffs accordingly, but explained that he had been advised by Children’s Rights that the Plaintiffs had been informed by somebody else. Id. at 127. As was revealed during trial, in the course of
32
Danny’s clinician and psychiatrist both indicted that reviewing past traumatic experiences might take an emotional toll on Danny. Tr. XI at 135.
33
It is unknown whether Dr. Adamakos so informed Tracy before she submitted to the evaluation.
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being interviewed, Danny indicated on at least five separate occasions that he wanted to leave and go home; yet, Dr. Adamakos did not terminate the interview. Id. at 128. Dr. Adamakos also conceded that he continued the interview after Danny became hypermotoric, or fidgety (which, according to Dr. Adamakos, may have been reflective of Danny being uncomfortable in the interview), went into a downward spiral, and had a “meltdown.” Id. at 133:13135:3.
Dr. Adamakos acknowledged that he was well aware of the caveats expressed by Danny’s clinician and his psychiatrist that reviewing past traumatic experiences might take an emotional toll on Danny and that he could only undergo the evaluations as long as the interview would be terminated if Danny became uncomfortable. Id. at 135. Nevertheless, Dr. Adamakos continued the interview after Danny explicitly told him that he “really want[ed] to leave,” id. at 132:10-22, and for several minutes after Danny began to show a “visceral reaction” in the course of the interview. Id. at 134:20-135:3.
After this revelation in the course of Dr. Adamakos’s testimony, the Court viewed the videotapes and read the transcripts of both interviews involving Danny. This Court went to great lengths in accommodating Plaintiffs’ counsel’s request for information, while putting measures in place (i.e., requiring informed consent from Cassie, obtaining the agreement from treating
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psychologists, demanding assurances from Dr. Adamakos that he would terminate the interviews if Danny or Cassie became upset or wanted to discontinue the process) to protect Danny and Cassie from the potential harm that intrusive evaluation and testing might cause them. It is apparent to the Court that at least two of these measures were disregarded: (1) Cassie and Danny were not informed by Dr. Adamakos that they could terminate the interview if they so desired; and (2) Dr. Adamakos continued the interview with Danny after Danny indicated on five separate occasions that he no longer wanted to participate or explicitly stated that he wanted to leave. Even after Danny became visibly upset during the questions put to him, Dr. Adamakos continued the interview for several minutes.
After this information came to light, the Court indicated that it considered the way Dr. Adamakos had conducted the interview of Danny extremely disturbing and troubling. Tr. XI at 192:22-25. In response, Children’s Rights acknowledged in a December 11, 2013 letter to the Court that it had informed Dr. Adamakos prior to the evaluations that both Cassie and Danny34 had provided their consent to proceed with the evaluations. Children’s Rights also suggested that (1) there may have been a “possible miscommunication between Dr. Adamakos and Plaintiffs’ Counsel as to whether this consent
34
The reference to Danny having provided his “consent” to the evaluation by Dr. Adamakos is clearly in error. Because of Danny’s young age, the Court did not require his consent as a precondition to the evaluation by Dr. Adamakos.
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obviated the need to tell each child at the beginning of each evaluation that the Named Plaintiffs could discontinue the evaluations at any time;” and (2) with respect to Danny’s evaluation, that Dr. Adamakos had been “exercising his professional judgment and applying the process set forth in his Declaration of November 19, 2012.”
Notwithstanding Children’s Rights’ assurances to the Court that Dr. Adamakos would inform Cassie and Danny at the beginning of the evaluation that they could discontinue the evaluation at any time, Dr. Adamakos neglected to do so, and he continued Danny’s evaluation even after Danny had repeatedly indicated that he wanted to leave and showed signs of great emotional upset.
It is the opinion of this Court that, despite its best efforts to protect the rights and well-being of the Named Plaintiffs while accommodating Plaintiffs’ counsel’s asserted need for the evaluations by Dr. Adamakos, Named Plaintiffs’ rights were compromised when counsel and their retained expert failed to adhere to the carefully constructed safeguards put in place by the Court. As a result, Danny was subjected to a lengthy interview during which he exhibited the emotional distress predicted by his treating clinician and psychiatrist.
When these transgressions came to light during trial, the Court advised the parties that it would take the matter up after the trial concluded. With the explication and publication of these
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events as set forth in this Memorandum of Decision, the court now considers the issue closed. Danny and Cassie, however, retain the prerogative to take whatever action they deem appropriate to vindicate their rights.
4(b) Dr. Adamakos on Danny Dr. Adamkos noted that Danny was seen as engaging, friendly, polite, and eager to have a home; although, at times, Danny was angry and engaged in inappropriate behavior. Tr. X at 87-88. In the course of the interview with Dr. Adamakos, Danny described feeling unsafe at the SM home at times and being mistreated at the LF and the T home, Tr. X at 98, 100, a recollection that caused Danny to become increasingly hyperactive, motoric, and visibly upset, and that turned into a “meltdown.” Tr. X at 103. Danny also indicated that he wanted very much to be in a family and he expressed doubt as to whether he was a good enough person to be adopted, although he did maintain hope for such a placement. Tr. X at 114-115. Danny spoke about positive experiences with his current visiting resource, a couple identified as A and D, with whom he feels safe. Tr. X at 117. Based on his interviews with Danny, Dr. Adamakos identified a level of depression and suicidal ideation (noting that Danny spoke of it in a way that “seemed very unlikely to succeed or that he even wanted to carry it out”). Tr. X at 119:14-18. Danny also expressed anger at his brother for having been adopted and being
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happy, while Danny himself was still without a family. Tr. X at 119-120.
Dr. Adamakos administered several psychometric instruments in the form of questionnaires to Danny, including the BASC-2 [Behavior Assessment System for Children], the M-PACI [Millon Pre-Adolescent Clinical Inventory], the TSCC [Traumatic Symptom Checklist for Children], and the TABS [Trauma and Attachment Belief Scale]. Tr. X at 123. Dr. Adamakos did not give Danny the MWES [My Worst Experience Scale] because Danny became emotionally upset during the second interview. Tr. X at 124. In reviewing the tests, Dr. Adamakos acknowledged that the BASC-scales were all within average range, but suggested that “there was a sense of some defensiveness” on Danny’s part. Tr. X at 124:20-22, 125:23-24. Likewise, the TSCC results were in the normal range. The results of the M-PACI appeared to be less than definitive. According to Dr. Adamakos’s interpretation, Danny “likely has a strong need for attention and approval;” “likely actively solicits praise and tries to be entertaining as a way to create [a] connection;” “it’s likely that [Danny] pays a good deal attention to the cues of people . . . ;” “[t]here was some indication that [Danny] may experience obsessions and compulsions . . . which is likely a symptom of anxiety.” Tr. X at 126:3-127:3. The results of two of the TABS scales were described as being in the “high average” range, indicating that “Danny, when unsure or anxious, will likely engage – according to
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these results, will likely engage in behaviors trying to control a situation that’s creating anxiety for him.” Tr. X at 128:7-11.
Dr. Adamakos offered an opinion that Danny had been “harmed over the years by his experiences since being taken into DCYF custody.” Tr. X at 129:23-24. Dr. Adamakos based this opinion as what he described as “the deterioration in his overall functioning as indicated by the record.” Tr. X at 130:1-2. Dr. Adamakos also pointed out that “the overall trend has been for more institutionalized or group, congregate care type living arrangements.” Tr. X at 130:11-13. Dr. Adamakos noted that Danny’s adjustment during the first year of DCYF care was “reasonably good” which he described as “an important baseline.” Tr. X at 130:22-23. He also noted that “[v]ery importantly, there was no indication of any kind of sexual acting out until the disruption of the first foster home, a totally new behavior that has no correlator or isn’t typically found with children who have just ADHD.” Tr. X at 131:812; Tr. X at 150:1-5 (Danny’s “functioning became worse and, importantly, became different in that there was now the inclusion of sexual acting out, which was a new symptom and not at all indicated prior to the first - in the first 14 months of time he was in DCYF care.”)
As Dr. Adamakos acknowledged, however, he had not talked to any of Danny’s treating providers, clinicians, or his psychiatrist; he also agreed that Danny was diagnosed with mood disorder and PTSD
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[post traumatic stress disorder]. Moreover, it was established during trial that Danny’s sexualized behavior was observed during the first five days after he was taken into DCYF care and was, in fact, the reason his maternal great-grandmother felt unable to care for him and his younger brother. Likewise, Danny’s developmental delay, aggressiveness, anxiety, non-compliance and a number of other troublesome behaviors were identified and diagnosed shortly after he was removed from his biological home.
4(c) Dr. Adamakos on Cassie M. In addition to reviewing Cassie’s DCYF case file, Dr. Adamakos conducted two separate two-hour interviews with Cassie, both of which were videotaped. Tr. XI at 23, 57. Dr. Adamakos also gave Cassie a number of self-administered tests from which he drew various conclusions. Tr. XI at 64-65. Specifically, Dr. Adamakos noted that the tests confirmed Cassie’s ADHD diagnosis; that Cassie showed a clinically significant score on the “Sensation Seeking” scale; and that she did not show a clinically significant score on the “Interpersonal Relations” or the overall “Anxiety” scale. Tr. XI at 66:22-25 (“[S]he feels judged or she feels as though she has to perform. She’s anxious about that.”). Dr. Adamakos suggested that Cassie may have been “somewhat defensive” in responding to the self-administered tests, Tr. XI at 67:16, which led him to surmise that “the only risk here is that her under-endorsement of items might have resulted in some lowered elevations.” Id. at 67:22-24.
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Based on the results of the tests, Dr. Adamakos suggested that “the impressions are that [Cassie] has an inflated sense of self combined with an insecure sense of worth.” Tr. XI at 67:25-68:2. He further suggested that, inter alia, Cassie lacks insights into herself; “anticipates criticism; and because of that, she likely has an edgy, irritable personality,” id. at 68:14-15; she expects there to be interpersonal problems, is suspicious of other people’s intentions, fears dependence on other people, and disregards social conventions. Tr. XI at 68-69.
According to Dr. Adamakos, Cassie was “at high risk for substance abuse tendencies.” Tr. XI at 70:9-10. Dr. Adamakos administered the “My Worst Experience Scale,” in which Cassie identified her worst experience as entering DCYF care. Tr. XI at 71. “[Cassie] connects that to being moved house to house, not seeing my family, not stay [sic] in one school, being picked on because I am in foster care.” Tr. XI at 71:15-17. According to Dr. Adamakos, “[o]ppositional conduct seems to be her response to being traumatized. It’s one of the many styles that people who have been traumatized, especially children, engage in. [Cassie] shows oppositionality as a response, as a likely response to having been traumatized.” Id. at 71:21-25. Cassie reported some difficulty sleeping, but “[n]ot like it was when she was younger.” Tr. XI at 72:14-16. Dr. Adamakos suggested that “while you can’t take it by itself, the results from the My Worst Experience Scale is very
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consistent with what is used to make a diagnosis of PTSD.” Tr. XI at 73:15-18 (“Again, you don’t use one test or one questionnaire to judge that, but how she responded on the questionnaire is highly consistent with that.”) Id. at 73:19-20.
Based on his review of Cassie’s DCYF records, the two two-hour interviews, and the self-administered tests, Dr. Adamakos offered the opinion that Cassie remained at high risk for a variety of problems growing up, “especially where she’s transitioning from adolescence to young adulthood in the next few years.” Tr. XI at 74:12-16. Among those problems for which Dr. Adamakos considered Cassie to be high risk were “sexually acting out . . . drug abuse or substance abuse issues, dropping out of school, legal problems,” and “entering into relationships that are harmful to her.” Tr. XI at 74:23-75:14, 103.
In his final conclusion, Dr. Adamakos suggested that Cassie experienced “an incremental sort of harm” while in DCYF care. Tr. XI at 76:3-4. Dr. Adamakos acknowledged that Cassie “entered into DCYF care very vulnerable based on her pre-DCYF history, her history with her family, with her biological family, an extremely vulnerable child coming in.” Tr. XI at 76:4-7. He further stated that “on top of that, there’s been an ongoing sense of being – she’s had repetitive experience of being let down.” Id. at 76:8-10. Cassie expressed to him that “adults mess up, and she cited both examples from her biological family as well as from DCYF.” Id. at
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76:17-20. Nevertheless, Cassie also “spoke positively” about the TH group home, id. at 76:24, and there had been what Dr. Adamakos described as “episodes of . . . a corrective experience.” Tr. XI at 77:11-12. Dr. Adamakos concluded that “there wasn’t consistent harm. There were times that her experience has been damaging to her, and there’s been times that her experience has been somewhat better.” Tr. XI at 81:13-16. Specifically, Dr. Adamakos noted that “[t]he difficulty sustaining a constant family experience for her . . . impacted her ability to have a foundation in which to develop with.” Tr. XI at 81:5-8. “Attempts were made, but there was lacking success; . . . we have an instance where there was some successful stability and during that time there actually was some benefit.” Id. at 81:9-12.
With respect to Cassie’s relationship with her younger sister, A., Dr. Adamakos noted that both came from a home that was “marked by neglect” and “very chaotic,” and in which the “children were left to fend for themselves.” Tr. XI at 82:20-83:5. Dr. Adamakos did not know how much contact Cassie had with A. after both were taken into DCYF care, but noted that there was a higher level of contact between Cassie and A. than between Cassie and her mother because DCYF could control only the contact with Cassie’s sister. Tr. XI at 85. The contact between Cassie and A. was diminished after A. was adopted in 2012. Tr. XI at 85-86.
Although Dr. Adamakos had some difficulty recollecting the
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circumstances in which Cassie was living while still in her biological home, Tr. XII at 58-61, he agreed that the early childhood trauma Cassie experienced in her biological home could have affected (1) her relationship with others later in life; (2) her brain development; and (3) her ability to attach to people and form relationships. Tr. XII at 62. He further acknowledged that the disruptive behaviors Cassie exhibited in all foster care placements had also been present in her biological home. Tr. XII at 81-83. After Cassie was taken into DCYF care, she was eventually diagnosed with reactive attachment disorder and as an adolescent with bipolar disorder. Tr. XII 83-84. A July 1, 2010 clinical evaluation concluded that sexualized behaviors Cassie had been exhibiting in foster care were related to trauma in her biological home. Tr. XII at 90.
It is noted that a considerable portion of Dr. Adamakos’s testimony regarding Cassie’s progress proved to be inconsistent with the record introduced into evidence. According to Dr. Adamakos, the placement with AD went very well, Cassie’s behavioral issues declined significantly, Tr. XI at 49, and she displayed no sexualized behaviors. Tr. XII at 93. Dr. Adamakos explained that Cassie’s improved behavior was “a dramatic break in terms of it being an improvement for Cassie,” that it “marks a period of time where she is thriving,” and that it was a “corrective experience” for her. Tr. XI at 50:7-9, 7-18, 22-25. He also testified that it
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was his understanding that Cassie had to leave the home when her foster parent required space for an adult child returning back to the home, Tr. XI at 51, that Cassie was unhappy to leave, and that her behavior deteriorated. Tr. XI at 52.
However, a Key Program report generated shortly after Cassie moved into the AD home establishes that Cassie still exhibited sexualized behavior, as a result of which she was precluded from returning to high school for the following academic year. Tr. XII at 95-96. AD discontinued providing a foster home for Cassie because CFS, the agency AD was working with, was closing its foster care services. Tr. XII at 99. In her interview with Dr. Adamakos, Cassie stated that she did not miss being in the home and that she did not talk to AD while she was in the AD home. Tr. XII at 97-99. Subsequently, Cassie went to the LH group home by order of the Rhode Island Family Court. Tr. XII at 99.
In forming his opinion about Cassie’s relationship with her caseworker, Dr. Adamakos noted that Cassie was annoyed with her DCYF caseworker and that she requested a different caseworker because “she wasn’t being attended to enough and that the worker wasn’t responsive enough.” Tr. XI at 53:13-19. A report from Cassie’s current placement revealed that Cassie was annoyed with her caseworker because she had not yet received permission to attend a tattoo party for her boyfriend. Tr. XII at 101. During the interview conducted by Dr. Adamakos, Cassie told him that her
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social worker, HP—who has been her caseworker almost the entire time Cassie has been in DCYF care—watched her grow up, knew her likes and dislikes, and that nothing gets past her. Tr. XII at 102103. Cassie also told Dr. Adamakos that she gets angry at HP sometimes and that she lets her know that. Tr. XII at 102. Dr. Adamakos acknowledged that Cassie described HP as a good social worker and he agreed that there was a connection between Cassie and HP. Tr. XII at 103.
The Court notes that Dr. Adamakos did not speak to any of Cassie’s current or former treating professionals, clinicians, placements, social worker, or other resources provided to Cassie by DCYF. Tr. XII at 104-105.
At least one of the tests Dr. Adamakos administered to Cassie, the BASC-2 (which showed results in the normal range for all five validity scales) had already been administered to Cassie on May 22, 2008, and December 9, 2008, during Cassie’s stay at the TH home. Tr. XII at 108. Although Dr. Adamakos did not do an “active comparison” between those tests and the one he administered, Tr. XII at 109:4-5, he acknowledged that the clinician reports related to the earlier tests reflected that Cassie’s behavior in 2008 was rated as clinically significant or at risk. Tr. XII at 115. In other words, the tests appear to reflect that there has been some improvement.
With respect to Dr. Adamkos’s prognosis for Cassie, including
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his stated concern that Cassie might drop out of school, become involved in abusive relationships, engage in substance abuse, or exhibit sexual acting out, Dr. Adamakos conceded that, during his interview, Cassie expressed that she was excited about her senior year in high school; she was completing school on time; and she had talked to him about going on to college or beauty school. Tr. XII at 117-118. There was no evidence that Cassie had been involved in an abusive boyfriend-girlfriend relationship in five years or that she had been abusing substances. With respect to her sexual acting out, such behavior had been documented since Cassie first entered DCYF care; it was also established that she had witnessed such behavior in her biological home. Tr. XII at 119.
4(d) Dr. Adamakos’s Opinions on Cassie and Danny At the hearing on Children’s Rights’s first motion to have the Plaintiffs evaluated by Dr. Adamakos, counsel represented that Dr. Adamakos would be able to “tease out” the harm suffered by Cassie and Danny as a result of inadequate care provided to them by the State. September 10, 2012 Hearing Transcript at 7:14-8:3, 13:1814:13 (Dkt. No. 168). At the beginning of his testimony, Dr. Adamakos explained that he was tasked with undertaking a forensic investigation as to “what types of treatment and harm have occurred to the children since they’ve been in the care of DCYF.” Tr. X at 8:23-25. To answer that question, he engaged with Cassie and Danny in individual interviews, used psychometric scales in the form of
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self-administered questionnaires, and reviewed the records in the DCYF case files, Tr. X at 30-32, including psychiatric and psychological evaluations and caseworker notes. Id. at 35.
However, Dr. Adamakos never provided any explanation of any methodology that would allow him to conclude whether Cassie’s or Danny’s continuing challenges were due to harm suffered as a result of deficiencies in how their cases were managed by DCYF, rather than the consequences of the severe neglect and abuse suffered in their respective biological homes or manifestations of genetically inherited disorders.
Dr. Adamakos reviewed the information in the record about Cassie’s and Danny’s biological families—which presumably served as a baseline to determine whether the Named Plaintiffs suffered any additional harm during DCYF care, Tr. X at 40. See Tr. XI at 157:10-14 (Q: “And based on your understanding and establishment of that baseline, it’s your position that you can separate Danny’s pre- versus post-DCYF behaviors or harm, if you will; correct?” A. “To some degree, yes.”) However, Dr. Adamakos appeared to discount, or appeared to be unclear with regard to, the severity of neglect and abuse Cassie and Danny had already suffered at the time of their removal from their biological homes and the problematic behaviors they displayed at the time they came into DCYF care.
When the self-administered psychometric measures, which Dr. Adamakos gave to the Named Plaintiffs, appeared to show results
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that fell within the normal range for both Cassie and Danny, Dr. Adamakos suggested—without any reference to scientific method—that both Cassie and Danny may have responded defensively and that the actual results of the tests might have been higher. With respect to Cassie, Dr. Adamakos conducted no direct comparison to the same earlier psychometric measures, at least two of which appeared to indicate that Cassie had, in fact, improved over time.
In light of the details in Cassie’s and Danny’s individual backgrounds when they were removed from their biological home, both the DCYF records and Cassie’s and Danny’s conduct during the interview with Dr. Adamakos reveal that they each have made remarkable progress. This does not diminish the fact that both will face continuing challenges in the future or that, in an ideal world, they might have found permanent families by now.
None of the evidence presented during trial, however, supports Plaintiffs’ contention that any of Cassie’s and/or Danny’s difficulties were solely, if at all, attributable to harms they suffered in DCYF care. Nor did the Plaintiffs offer any instance in which Cassie or Danny were exposed to unreasonable risks. At any time the services provided to Cassie or Danny appeared insufficient to address their very considerable needs, the situation was appropriately addressed and, to the extent that was possible, the problems were remedied. Danny’s history during DCYF care shows that he was provided services whenever a need for such services was
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indicated. It also reflects that, every time Danny was placed into a more structured setting, his behavior improved.
For both Cassie and Danny, it was also established that their more difficult behaviors were already present when they were placed in DCYF care and could well be attributed to family history and/or the circumstances that Cassie and Danny experienced in their biological homes. Repeated efforts by DCYF to find adoptive homes for both Cassie and Danny are well documented, as is the acknowledgment by DCFY that more pre-adoptive and foster homes are critical to address the needs of children in DCYF care.
In sum, after reviewing the record, Dr. Adamakos’s testimony and the transcripts of Dr. Adamakos’s interview with Danny, the Court is of the opinion that the Plaintiffs have failed to establish that Cassie and/or Danny were harmed or were subjected to risk of harm during DCYF care as a result of DCYF policies, or any acts or omissions based on such policies and procedures.
5. Dr. Hansen’s Testimony Dr. Hansen was asked by Children’s Rights to evaluate the cost of caring for children in Rhode Island foster care and to determine whether the State made payments on behalf of those children, as required by the AACWA, Title IV-E of the Social Security Act, 42 U.S.C. §671(a)(1)35, 42 U.S.C. § 672(a)(1) and (a)(2)36, 42 U.S.C.
35
42 U.S.C. §671 (a) requires that, with respect to federal payments for foster care and adoption assistance,
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§675(4)(A)37 and 45 C.F.R. 1355.2038. Tr. IX at 4. To make that
[i]n order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which-(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;... 42 U.S.C. §671 (a)(1).
36
42 U.S.C. § 672 (a) (1) and (2) address eligibility as well as removal and foster care placement requirements of the foster care maintenance payments program.
37
42 U.S.C. § 675(4)(A) defines foster care maintenance payments as follows:
The term “foster care maintenance payments” means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence. 42 U.S.C. § 675(4)(A).
38
45 C.F.R. § 1355.20 further defines foster care maintenance payments as follows:
Foster care maintenance payments are payments made on behalf of a child eligible for title IV–E foster care to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel for a child's visitation with family, or other caretakers. Local travel associated with providing the items listed above is also an allowable expense. In the case of child care institutions, such term must include the reasonable costs of administration and operation of such institutions as
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determination, Dr. Hansen first estimated the cost of providing the
items intended to be covered by foster care maintenance payments
“for a typical child in a typical family.” Tr. IX at 6:19-22. The
items include the cost of providing food, clothing, shelter, daily
supervision, school supplies, personal incidentals, liability
insurance, reasonable travel (for visitation and any other
purpose). Tr. IX at 6. Dr. Hansen then calculated the value of
benefits provided to foster parents in specific categories, such as
food and clothing. Tr. IX at 6-7. Finally, Dr. Hansen calculated
the difference between the estimated costs incurred by foster
parents and the actual benefits paid by the State. Tr. IX at 7.
To determine the cost incurred by families in providing care
to foster children, Dr. Hansen used data from the United States
are necessarily required to provide the items described in the preceding sentences. “Daily supervision” for which foster care maintenance payments may be made includes:
(1) Foster family care--licensed child care, when work responsibilities preclude foster parents from being at home when the child for whom they have care and responsibility in foster care is not in school, licensed child care when the foster parent is required to participate, without the child, in activities associated with parenting a child in foster care that are beyond the scope of ordinary parental duties, such as attendance at administrative or judicial reviews, case conferences, or foster parent training. Payments to cover these costs may be: included in the basic foster care maintenance payment; a separate payment to the foster parent, or a separate payment to the child care provider; and
(2) Child care institutions--routine day-to-day direction and arrangements to ensure the well-being and safety of the child. 45 C.F.R. § 1355.20.
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Consumer Expenditure Survey (“CE”) and the 2011 United States Department of Agriculture (“USDA”) report on expenditures by families on their children. Tr. IX at 16. The CE includes a quarterly interview administered to thousands of households regarding large purchases over a three-month period, plus a diary in which families record every single expenditure for a couple of weeks out of every quarter. Tr. IX at 16-17. With respect to the USDA data, Dr. Hansen used the income category for a middle income family in a two-parent, two-child household located in the urban Northeast. Tr. IX at 19:16-20:10. Dr. Hansen did not explain, however, how this baseline income category relates, if at all, to Rhode Island.
For the cost of food (depending on age, assessed at $1,470$2,690 annually) and clothing ($680-$1,040 annually), Dr. Hansen relied on the USDA report’s child-specific estimate of average expenditure per child “in the typical family for the typical child.” Tr. IX at 22; Ex. 712. The cost of liability insurance for a foster child was left out of the calculation because the State pays the insurer directly. Tr. IX at 22:16-19. In regard to daily supervision, Dr. Hansen used both the CE and the USDA report (which does not distinguish between daycare and education); she also differentiated between younger children who required daily supervision ($638-$3,850 annually) and older children who did not ($0.0). Tr. IX at 23. A similar calculation was undertaken for
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school supplies ($0.0-$804 annually). Tr. IX at 24-25. Because the USDA report does not inquire for which individual household member miscellaneous expenditures are incurred, Dr. Hansen based her calculation on the assumption that families spend the same amount on incidentals for each family member ($900-$1,190 annually). Tr. IX at 25. For travel expenses, the USDA report includes trips away from home, but federal regulations only include local travel as an allowable cost. See 45 C.F.R. § 1355.20. Accordingly, Dr. Hansen relied on the CE which concludes that 97 percent of all travel expenses are for local travel and used that figure for her calculation ($1,581-$2,037 annually). Tr. IX at 26. Finally, with respect to housing, Dr. Hansen relied on the USDA report’s estimation of the average cost for an additional bedroom in which to house one additional child ($4,680 annually). Tr. IX at 27.
Having calculated the annual costs of foster care ($11,131$13,339 per child), Ex. 712, Dr. Hansen then reviewed payments the State makes on behalf of children who are placed in family foster care (excluding from her assessment children placed in group homes or institutional care). Tr. IX at 29. In addition to basic foster care maintenance payments, supplemental payments are made to families that care for foster children with special needs. Tr. IX at 30. Families also receive benefits that go to specific costs, such as free lunch programs and clothing. Tr. IX at 29, 43.
Based on information provided by DCYF, Ex. 488, current daily
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board rates in Rhode Island range from $13.64/day to $15.79/day. According to Dr. Hansen, the rates were set in 2001, and she could not locate any information that explained how those rates were set by DCYF. Tr. IX at 33-35. Initially, payments are made at the basic rate, which may be supplemented to account for special needs of a foster child. Tr. IX at 36. Additional benefits include birthday and Christmas checks ($25 and $40, respectively) and the availability of clothing vouchers39. Tr. IX at 43. Dr. Hansen also assumed that foster families would undertake at least one local trip per week in the care of a foster child, for which they would receive reimbursement of $20 per trip; she noted, however, that she had no quantitative information on the actual frequency of transportation. Tr. IX at 50-52.
In the final step of her analysis, Dr. Hansen credited board costs and the value of additional benefits against the estimated expenditures derived from CE data and the USDA report. Tr. IX at 54-56. Ex. 713. Dr. Hansen concluded that the difference between the estimated expenditures and the actual State-provided payments and benefits, “is the amount of costs that we could expect foster parents to pay out of their own pockets,” Tr. IX at 55:20-24, ranging from $1,650 to $4,542 per year. Ex. 713. Based on that
39
Dr. Hansen did not include clothing vouchers in her analysis because vouchers are limited to first time placement or extenuating circumstances and are given to social workers directly. Tr. IX at 48; Ex. 488.
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conclusion, Dr. Hansen offered as her expert opinion that, “in order to cover all of the costs that foster parents incur in connection with the cost categories required under federal law,” Tr. IX at 60:19-24, foster care board rates in Rhode Island needed to be increased between 31 percent and 96 percent, depending on the age of the child involved. Ex. 710, Tr. IX at 61. For a child at Danny’s age, the rate required an increase of 73 percent, for a child at Cassie’s age, the necessary increase was calculated at 79 percent. Tr. IX at 62-63.
In arriving at a conclusion that foster care maintenance payments in Rhode Island are inadequate and result in a budgetary shortfall for which foster families have to compensate, Dr. Hansen’s analysis assumed that a foster family in Rhode Island incurs the same average expenditures for each child as a twoparent, two-child, middle-income family does. Plaintiffs offered no empirical support for such an assumption. It is also noted that the largest budgetary item in Dr. Hansen’s proposed family expenditure account is based on the cost of an additional bedroom for each child; there is, however, no federal requirement that each foster child be provided with a separate bedroom (with some exception for children of different genders over certain ages). Tr. IX at 75, 125, 130. Likewise, there is no federal minimum foster care payment rate and no specifically required methodology to set such a rate. Tr. IX at 104. Rather, states are allowed to determine their own
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rates for foster care maintenance payments. Tr. IX at 105. As established at trial, foster care maintenance payments for
generic homes are established when children first come into care. Thereafter, an agreement is reached between the foster parents and the State for a supplemental rate based on the individual needs of a particular child going to a particular home. Tr. IX at 103, 105. Subsequently, the rates are assessed with a rate-setting tool every six months. Tr. IX at 104. In addition, casework supervisors have the authority to supplement the daily board rate up to $21.43; a regional director can further increase the rate to $32.15. Tr. IX at 97, 99. Additional increases to the supplemental rate are decided by the Rate Setting Committee. Tr. IX at 99-100.
To the extent Dr. Hansen’s testimony was intended to establish that the State deprived the Named Plaintiffs of rights conferred on them by the AACWA, specifically adequate foster care maintenance payments, it failed to do so. Dr. Hansen’s analysis was based on expenditures incurred by a “typical” two-parent, two-children family with a middle-class annual income between $59,000 and $103,000 in the North-East. The estimated expenditures relative to an individual foster child was based on the average expense a family would incur per one of two children living in the home; the calculation did not allow for the principle of economy of scale, pursuant to which the cost for each additional child is likely to be less than the calculated average. Tr. IX at 122-123.
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No information was included on the actual expenditures pertaining to Cassie and Danny, or the supplemental rates that may have been established for them. Dr. Hansen did not have information regarding where Cassie or Danny were placed while they were in DCYF care. Tr. IX at 82-83. However, based on the record, both Cassie and Danny were placed either in specialized foster homes or they lived in various residential settings.
Dr. Hansen’s report of foster care maintenance rates in Rhode Island was limited to DCYF-licensed “generic” family foster homes and did not include an assessment of negotiated, contractual rates for children in specialized foster care. Tr. IX at 79-80. In essence, Dr. Hansen’s analysis was based on averages, not on the actual payments made by the State on behalf of the individual Named Plaintiffs; Dr. Hansen did not know whether Danny’s and/or Cassie’s foster parents received an increase in the board rate. Tr. IX at 89-90, 100, 103.
In sum, none of Dr. Hansen’s analysis was specific to Rhode Island, actual foster families in the state, or expenditures and payments relative to the Named Plaintiffs. It gives the Court some pause to learn that foster care maintenance rates have been unchanged since 2001. However, in light of the availability of additional benefits and the presence of a mechanism to negotiate supplemental payments based on an individual child’s needs, the Court concludes that the Plaintiffs have failed to establish a
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deprivation of rights under the AACWA with respect to foster care maintenance payments on behalf of the Named Plaintiffs. IV. Conclusions
(A) Substantive Due Process Claims (Counts I and II) The Complaint asserts that the State has failed to protect Cassie and Danny from harm, Complaint ¶ 220, and, after removing them from their biological homes, has put them in placements that posed an imminent risk of harm to them, Complaint ¶ 224, all of which has resulted in a violation of their constitutionally protected liberty and privacy interests. After reviewing the evidence submitted by the Plaintiffs in this case, the testimony of all the witnesses, and in consideration of the standard this Court deems appropriate for considering the Plaintiffs’ claims, the Court is of the opinion that the Plaintiffs have failed to establish that DCYF’s care of Danny and Cassie was in deliberate disregard of, or a substantial deviation from, DCYF’s standards based on Rhode Island statutory law, Rhode Island’s administrative code, and the provisions of the COA. Moreover, the Plaintiffs have failed to establish that Danny or Cassie were deprived of a constitutionally protected interest while in DCYF’s care. There was nothing to suggest that the decisions made by DCYF (to the extent such decisions were not subject to orders by the Family Court) regarding Danny’s and Cassie’s placement and services
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were inappropriate, unfounded, in contravention of DCYF regulations or state law, or that they resulted in harming Cassie or Danny or subjected them to an unreasonable risk of harm.
DCYF made several attempts to find an adoptive home for Danny; however, Danny’s needs and behavioral challenges made those attempts unsuccessful. Danny’s file reveals that he was determined to be in need of a more structured environment and, every time he was placed in a group home, his behavior improved. After an allegation was raised of inappropriate conduct towards Danny at a specialized foster home, he was promptly removed and an investigation was launched (which resulted in a finding that the allegation was unfounded). Danny has had the same caseworker since he was taken into DCFY care (with the exception of two maternity leaves, when another caseworker was assigned to Danny.) When Danny was observed to have sustained bruises while he was living in a group home, an investigation was conducted and Danny was placed into a different classroom as the child with whom he had an altercation.
Cassie’s extreme needs resulted in her placement in a group home only after two specialized foster homes could not address those needs. Cassie’s history indicates that she, like Danny, required and benefitted from a more structured environment, as her behavioral problems improved with such placement. DCYF made repeated efforts to find a permanent adoptive home for Cassie, but
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it was apparent that Cassie’s needs could not be met even in a specialized foster home, notwithstanding the additional services provided by DCYC. As with Danny, the record established that DCYF promptly took action and conducted an investigation into allegations of lack of supervision at the group home in which Cassie was placed.
Some of the evidence submitted by the Plaintiffs can be interpreted to indicate that DCYF could benefit from additional resources, e.g., to hire additional caseworkers and to lower CPS investigators’ caseloads. Such additional resources might also result in more exact record keeping and improved timeliness of individualized service plans, an area where improvement has been identified as necessary.
The testimony of Dr. DeFrances before the Finance Committee made clear that DCYF recognizes the need for more foster homes and for providing appropriate services to those homes. The testimony also showed that DCYF has taken action to meet those needs and is seeking financial support in that regard. Likewise, DCYF’s internal reports document that DCYF is making efforts to bring its performance into compliance with federal requirements, Rhode Island statutes and regulations and/or the provisions set out by the COA. There was, however, no evidence to establish that DCYF’s current policies and practices—or any deliberate disregard of such policies and practices—resulted in harm to the Named Plaintiffs or that the
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Plaintiffs were subjected to unreasonable risk while in DCYF’s care.
In sum, a review of the circumstances of Danny’s and Cassie’s history, placements, treatments, and services does not support the Named Plaintiffs’ claims that DCYF’s acts or omissions caused any harm to either Danny or Cassie, that DCYF subjected them to unreasonable risks, or that it deprived them of their constitutional rights.
Accordingly, the Plaintiffs’ substantive due process claims in Counts I and II must be dismissed.
(B) Familial Association (Count III) The Plaintiffs’ claims regarding alleged deprivation of familial relationships were entirely unsupported by the record. Instead, the evidence established that DCYF—in accordance with orders from the Family Court, when applicable—made efforts to support a continuing relationship between Cassie and her mother and sisters, and between Danny and his parents, his brother, his greatgrandmother, and his grandmother. Cassie was initially placed with two half-siblings and she continued to have visitation with her mother. Although it appears that those visits were upsetting to Cassie at times, they were court-ordered and not at DCYF’s discretion. Contact with Cassie’s sister ceased only after the sister’s adoptive parents decided that the contact was too disruptive for the time being.
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Danny was initially placed with his sibling in their greatgrandmother’s home, where Danny was provided with specialized services. Only after Danny’s great-grandmother declared that she could no longer care for Danny because of his behavioral issues, DCYF placed him in a specialized foster home. During that placement, Danny’s caseworker transported him to regular visits with his parents; however, the parents did not always keep the appointments. Danny’s relationship with his grandmother has been continued with regular visitation.
(C) AACWA Claims (Count IV) Although the State now raises the question of whether the Named Plaintiffs have standing to pursue their claims under the AACWA, there is no need for a lengthy discussion of this point. This Court has previously determined that “[i]n light of the AACWA's mandatory requirements to provide benefits to each child in the same circumstances as the plaintiffs, and the unavailability of other means to seek relief against alleged violations of the specific AACWA provisions raised in this case,” Sam M. v. Chafee, 800 F.Supp.2d at 388, the Plaintiffs are not precluded to proceed with their claims to timely written case plans and adequate foster care maintenance payments. However, because the evidence submitted at trial was insufficient to support the Plaintiffs’ contentions regarding inadequate foster care maintenance payments, the AACWA claims cannot withstand the State’s Rule 52 motion.
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With regard to the case plans, it is apparent that individualized service plans for both Danny and Cassie were regularly provided, although not always within the requisite time frame. The Plaintiffs submitted those service plans into evidence as Ex. 90, Ex. 130, each of which consists of a three-inch stack of paper. The fact that the plans were not always timely and may have lacked signatures, while indicating that some improvement in record keeping may be needed, does not constitute a denial of the Named Plaintiffs’ rights to individual service plans under the AACWA.
For the foregoing reasons, the Defendants’ motion pursuant to Fed. R. Civ. P. 52(c) is GRANTED. The clerk is directed to enter judgment in favor of the Defendants.
SO ORDERED.
/s/ Mary M. Lisi Mary M. Lisi United States District Judge
April 30, 2014
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 Case: 14-1585 Document: 00116825822 Page: 1 Date Filed: 04/21/2015 Entry ID: 5901427
United States Court of Appeals
For the First Circuit
No. 14-1585
DANNY B., BY NEXT FRIEND GREGORY C. ELLIOTT, and CASSIE M., BY NEXT FRIEND KYMBERLI IRONS,
FOR THEMSELVES AND THOSE SIMILARLY SITUATED, Plaintiffs, Appellants, v.
GINA M. RAIMONDO,* IN HER OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] [Hon. Lincoln D. Almond, U.S. Magistrate Judge]
Before Selya, Circuit Judge, Souter,** Associate Justice, and Lipez, Circuit Judge.
William Kapell, with whom Ira Lustbader, Children's Rights, John W. Dineen, Jared Bobrow, and Weil, Gotshal & Manges LLP were on brief, for appellants.
Neil F.X. Kelly, Assistant Attorney General, with whom Peter
*Pursuant to Fed. R. App. P. 43(c)(2), Governor Gina M. Raimondo has been substituted for former Governor Lincoln D. Chafee as the lead defendant-appellee.
**Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

Case: 14-1585 Document: 00116825822 Page: 2 Date Filed: 04/21/2015 Entry ID: 5901427
F. Kilmartin, Attorney General, and Brenda D. Baum, Assistant Attorney General, were on brief, for appellees.
April 21, 2015

Case: 14-1585 Document: 00116825822 Page: 3 Date Filed: 04/21/2015 Entry ID: 5901427
SELYA, Circuit Judge. The management of complex litigation presents challenges that test the mettle of even the most able trial judge. Given the rigors of this task, we have ceded substantial discretion to the district courts with respect to case management decisions. But that discretion, though wide, is not boundless.
In the case at hand, two case management orders crossed this line: an order that totally denied plaintiffs' counsel access to their own clients and an order that prevented the plaintiffs from seeking plainly relevant discovery. Accordingly, we vacate the judgment below and remand for further proceedings. I. BACKGROUND
The background facts are set out in exegetic detail in a prior opinion of this court and in the opinion of the court below. See Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77 (1st Cir. 2010); Cassie M. ex rel. Irons v. Chafee (Cassie III), 16 F. Supp. 3d 33 (D.R.I. 2014). We assume the reader's familiarity with those narratives and rehearse here only the events that bear directly on the issues sub judice.
This putative class action was brought on behalf of ten foster children in the custody of the Rhode Island Department of Children, Youth and Families (DCYF). Because the plaintiffs were minors, the initiators of the suit sought to appear as their next friends under Federal Rule of Civil Procedure 17.
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The complaint designated as defendants, in their official capacities, a coterie of state officials (collectively, the State). It sought certification of a class of all minor children who were in (or might enter) DCYF custody based on a report or suspicion of abuse or neglect. Invoking 42 U.S.C. § 1983, the complaint prayed for declaratory and injunctive relief on behalf of the named plaintiffs and the putative class.
The gravamen of the complaint was the allegation that DCYF's failings expose foster children in its custody to an unreasonable risk of harm in violation of their substantive due process rights. Relatedly, the complaint averred that the State had failed to comply in various respects with the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a.
The State moved to dismiss the complaint, and the district court obliged. The court's principal rationale was that the proposed next friends did not satisfy Rule 17's requirements.1 See Sam M. ex rel. Elliott v. Carcieri, 610 F. Supp. 2d 171, 181-84 (D.R.I. 2009). On appeal, we deemed it fitting that foster children be afforded access to a federal forum to seek redress against their custodian. See Sam M., 608 F.3d at 91-92. After evaluating the qualifications of the proposed next friends, we
1 In addition, the court dismissed the claims of three plaintiffs as moot.
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concluded that they were suitable representatives. See id. at 9294.
On remand, the case was transferred to a different trier. See D.R.I. R. 105(b). The State again moved to dismiss, this time invoking Federal Rule of Civil Procedure 12(b)(6). Although the district court dismissed as moot the claims of five more plaintiffs, it allowed the case to proceed. See Sam M. ex rel. Elliott v. Chafee, 800 F. Supp. 2d 363, 389 (D.R.I. 2011). The court then invited the parties to submit updated briefing on the plaintiffs' motion for class certification (which had been filed with the complaint). Later, however, the court advised the parties that it would not address class certification until it had decided dispositive motions on the individual claims.
Concerned about the ravages of mootness, the district court allowed the filing of an amended complaint adding five new plaintiffs. The court then denied without prejudice the motion for class certification.
Pretrial discovery frequently proved contentious, taxing the patience of the district judge and the magistrate judge. Although their efforts bordered on the heroic, we eschew a blow-byblow account and, instead, fast-forward through seven months of discovery to October 23, 2012. On that date — with an array of unfulfilled discovery requests and motions to compel pending — the State moved for a protective order aimed at limiting the scope of
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discovery. Its principal thesis was that the plaintiffs were entitled only to information pertaining directly to the named plaintiffs. For example, it objected to many of the plaintiffs' discovery requests on the ground that the information sought went beyond the case files of the individual plaintiffs and, therefore, was not relevant.
The district judge referred the motion to the magistrate judge, who allowed the protective order in part. See Cassie M. ex rel. Irons v. Chafee (Cassie I), No. 07-241, slip op. at 3 (D.R.I. Dec. 17, 2012) (unpublished). His rescript explained that, in light of the district judge's plan to address the claims of the individual plaintiffs on summary judgment before addressing class certification, discovery should be limited to information bearing upon those claims. See id. at 2. No separate order was entered delineating the modified scope of discovery, but the magistrate judge directed the parties to confer in an attempt to narrow their disputes in light of his decision. As a result, the plaintiffs provisionally withdrew portions of their motions to compel.
The plaintiffs appealed the protective order to the district judge, who upheld it. See Fed. R. Civ. P. 72(a). Thereafter, the magistrate judge ruled on a number of lingering discovery issues. His decision confirmed that the protective order "effectively precluded [the plaintiffs] from seeking policy or practice discovery." Cassie M. ex rel. Irons v. Chafee (Cassie
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II), No. 07-241, 2013 WL 785621, at *2 (D.R.I. Mar. 1, 2013). This depiction was consistent with the way in which the plaintiffs had characterized the protective order in their appeal to the district judge.
Another development transpired while the parties were sparring over the scope of discovery. On February 26, 2013, the plaintiffs renewed their motion for class certification. They argued that the district judge's reluctance to decide the class certification issue was causing substantial prejudice because the claims of ten plaintiffs already had become moot and several more plaintiffs would soon age out of DCYF custody. Following procedural skirmishing not relevant here, the district judge again declined to address class certification and allowed the State to delay a response to the class certification motion until fourteen days after any summary judgment decision.
On July 24, 2013, the district judge performed an aboutface. At a status conference, the judge voiced concerns about how long it was taking to bring the case to a head. She suggested that the most efficient course of action would be to dispense with dispositive motions and proceed directly to trial. Acting on her own suggestion, the judge declared that she would set the case for trial on the individual claims without awaiting summary judgment motions.
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The plaintiffs objected and moved for various kinds of

relief. Pertinently, they implored the district judge to postpone

any trial, take up the issue of class certification, and reopen

discovery so that they could obtain the policy and custom evidence

that had been foreclosed by the protective order. The judge

rejected these importunings. Citing the fact that the plaintiffs

had been able to depose certain DCYF policymakers, she stated that

she "believe[d] that the Plaintiffs had an opportunity and have

received evidence and discovery on the question of [DCYF's]

policies, procedures, [and] customs."

In regard to her

unwillingness to address class certification, the judge noted that

the plaintiffs were required to prove that their constitutional and

statutory rights were being violated and reasoned that such a

determination could more expeditiously be made in the context of

their individual claims before allowing class-wide discovery.

With an unwanted trial looming, plaintiffs' counsel asked

the State to facilitate meetings with their clients. The State

demurred, making plain that it would not provide any contact

information without a court order. On August 29, 2013, the

plaintiffs moved to compel the State to allow plaintiffs' counsel

and the next friends to meet with the plaintiffs for purposes of

trial preparation.2 The State objected.

2 Plaintiffs' counsel previously had requested contact information for the plaintiffs' caregivers during discovery. The State stonewalled, arguing that the plaintiffs were "not 'clients'
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At the ensuing hearing, the district judge stated that she viewed the motion for access as a veiled attempt to obtain fact discovery beyond the discovery deadline. When the judge asked whether the named plaintiffs would be called as witnesses, counsel replied that they could not make that determination without meeting with their clients. The judge proceeded to deny the motion, effectively preventing plaintiffs' counsel from speaking with their clients in advance of trial.
By the time that the trial commenced on November 12, 2013, the claims of all but two of the named plaintiffs (Danny B. and Cassie M.) had been rendered moot through aging or adoption. When the plaintiffs rested, the State moved for judgment on partial findings. See Fed. R. Civ. P. 52(c). The district judge took the matter under advisement and, after receiving post-trial briefing, concluded that the plaintiffs had presented insufficient evidence to establish that DCYF's policies and customs had either harmed them or exposed them to an unreasonable risk of harm. See Cassie III, 16 F. Supp. 3d at 79. The judge likewise concluded that the plaintiffs had failed to carry their burden of proof with respect
in the typical attorney client relationship," and that meetings with counsel could result in disruption and harm to the plaintiffs. Plaintiffs moved to compel reasonable access to their attorneys and next friends, but (for reasons that are not apparent from the record) they withdrew the motion before any judicial officer addressed it.
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to their statutory causes of action. See id. at 80. Judgment entered, and this timely appeal ensued. II. ANALYSIS
The plaintiffs advance a compendium of claims of error. Two of these claims, which relate to pretrial proceedings, are front and center: that the district court (i) prevented the plaintiffs without sufficient reason from meeting with their lawyers and (ii) improvidently pretermitted discovery relating to DCYF's policies and customs. Because we conclude that the district court abused its discretion both when it denied plaintiffs' counsel access to their clients and when it refused to allow discovery essential to the plaintiffs' claims, we are constrained to vacate the judgment. The tale follows.
A. Access to Counsel.
The plaintiffs submit that the district court abused its discretion when it refused to allow their lawyers to meet with them.3 We have not yet had occasion to consider the standard of review applicable to decisions anent a minor's access to her
3 The plaintiffs' claim also extends to the denial of their next friends' request for access. This denial has some independent significance: next friends serve the important role of ensuring that minor plaintiffs are afforded entry to the federal courts in pursuit of their rights. See Sam M., 608 F.3d at 91-92; Gaddis v. United States, 381 F.3d 444, 453-54 (5th Cir. 2004) (en banc). Here, however, the district court's refusal to allow the next friends access to the plaintiffs was intertwined with its refusal to allow the plaintiffs' lawyers to meet with their clients. Consequently, we use a shorthand and refer throughout only to counsel's denied access.
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lawyers. Nor do we need to cross that bridge today: the parties agree that we should review this decision for abuse of discretion, and we accept that agreement. See United States v. Ramirez-Rivera, 241 F.3d 37, 40 & n.4 (1st Cir. 2001); cf. Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991) (holding that federal court sitting in diversity may accept parties' reasonable agreement concerning choice of law).
The district court is responsible for safeguarding the interests of those minors who appear as litigants before it. See Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974). The situation is complicated where, as here, the minors are foster children who are suing the State. As we previously noted, the State has a structural conflict of interest when it comes to decisions concerning the legal representation of such plaintiffs. See Sam M., 608 F.3d at 88 n.12. This conflict is exacerbated because plaintiffs' counsel cannot even gain access to their own clients without the State's cooperation.
The claim of error here tests the way in which the district court handled this conflict. A fundamental principle guides our analysis. Civil litigants have a constitutional right, rooted in the Due Process Clause, to retain the services of counsel. See Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 257 (1st Cir. 1986); Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1117-18 (5th Cir. 1980). This right safeguards a litigant's
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interest in communicating freely with counsel both in preparation for and during trial. See Doe v. District of Columbia, 697 F.2d 1115, 1119 (D.C. Cir. 1983); Potashnick, 609 F.2d at 1118-19. After all, the right to retain counsel would be drained of meaning if a litigant could not speak openly with her lawyer about her case and how best to prosecute it. See Denius v. Dunlap, 209 F.3d 944, 954 (7th Cir. 2000); Doe, 697 F.2d at 1119. While this right is not absolute — courts surely can insist upon reasonable rules of practice that affect the lawyer-client relationship — a court must give great weight to this valued interest even in areas committed to its discretion. See, e.g., Doe, 697 F.3d at 1119-20 (requiring protective order limiting counsel's discussion of discovery materials with client to be narrowly drawn); Potashnick, 609 F.2d at 1119 (reversing judgment where court unreasonably barred attorney from speaking to client during breaks in testimony).
Resolving this appeal does not require us to explore all of the circumstances that might justify limiting communications between a minor plaintiff and her lawyer. Suffice it to say that a court may not restrain a litigant's access to counsel without some substantial justification, and any such restraint should be narrowly tailored to respond to the concern that prompted it. See Doe, 697 F.2d at 1120; In re Ti.B., 762 A.2d 20, 29-30 (D.C. 2000); cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02 (1981) (discussing restrictions on communications with potential class members, and
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requiring that such orders be "carefully drawn" and "limit[] speech as little as possible"). An order that effectively precludes any pretrial communication between a minor and her attorney must satisfy these criteria.
No substantial justification is apparent here. The record reveals no indication that the court below accorded any weight to the plaintiffs' interest in communicating with counsel. Goaded by the State, the court seemed to assume that the next friends' access to counsel was a sufficient substitute for the plaintiffs' access, reasoning that for purposes "of trial strategy sessions, that's what the next friends are for." But this reasoning does not hold water: even if a next friend's access to counsel sometimes may assuage due process concerns, that would not be true when, as in this case, the next friend was also denied access to the client.
The district court gave two other reasons in support of its preclusive ruling. First, the court posited that the motion for access was untimely because it was filed after the close of discovery. This assumed, of course, that the purpose of the requested meetings was to obtain discoverable information. But that assumption was not grounded in anything that plaintiffs' counsel said or wrote. Rather, plaintiffs' counsel advised the
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court that the purpose of the proposed meetings was to prepare for trial and to determine whether their clients wished to testify.4
At any rate, the plaintiffs' interest in speaking with their counsel plainly persisted beyond the close of discovery. Even though there was a legitimate concern that counsel might obtain and attempt to introduce new information in derogation of the discovery deadline, the district court had the ability to prevent the use of such new information without resorting to a total denial of access. There is no need to use an elephant gun to slay a mouse, and the court could have allowed the meetings to proceed and simply excluded any newly discovered matter if and when the plaintiffs attempted to use it at trial. See, e.g., Fed. R. Civ. P. 16(f); 37(b)(2)(A)(ii).
The district court's second rationale relates to its allowance of a motion by plaintiffs' counsel to have their chosen psychologist interview the plaintiffs in advance of trial. The court theorized that since it was allowing the psychologist to examine the plaintiffs, plaintiffs' counsel would have the benefit of the psychologist's report and would have no need to meet personally with their clients. We do not agree.
4 In the context of the case as it stood, that approach made sense. Cassie, for example, turned 17 during the course of the trial. The district court was silent as to why she should not have been permitted to choose whether to testify to her own behoof.
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The psychological examinations served an entirely different purpose than the requested attorney-client meetings. Those examinations did not provide counsel an opportunity to explain the litigation, determine how the children would fit into a trial strategy, or ascertain the desirability of having them testify. If more were needed — and we doubt that it is — the psychological examinations were videotaped and by court order delivered to opposing counsel. Manifestly, then, any privileged communication was impossible. That the court allowed the psychological examinations to go forward was irrelevant to whether the State was justified in blocking the lawyers' access to their clients.
In an effort to catch lightning in a bottle, the State tries to justify the denial of access on the ground that attorneyclient meetings might not have been in the plaintiffs' best interests. But this is pie in the sky; the State offered no evidence that the plaintiffs might suffer any harm from such meetings.5 Dancing around this point, the State says (without meaningful citation to the record) that the district court denied access, at least in part, out of such a concern. But the district
5 The State suggests that an incident that occurred during Danny's psychological evaluation buttresses its claim of potential harm. But that incident took place after plaintiffs' counsel unsuccessfully attempted to gain access to their clients and has no bearing on whether the requested attorney-client meetings posed any risk of harm to the plaintiffs.
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judge, who ably articulated her views at every stage of this complex case, neither expressed any such concern nor made any finding that harm was likely to ensue should the lawyers meet with their clients.6 Consequently, we decline the State's self-serving invitation to impute this reasoning to the court below.
The short of the matter is that the denial of access rests on insupportable findings, which are not strengthened by the State's conjectural hypotheses. There is simply not enough here to justify the total denial of a litigant's right to consult with her lawyer. Cf. Sam M., 608 F.3d at 88 n.12 (disapproving State's attempt to oppose appointment of next friends based on "a general assertion" that other relatives might be suitable representatives).
Let us be perfectly clear. We do not hold that a district court may never place limits on communications between foster children and their lawyers. In this realm, as in others, the court may make orders that are necessary and appropriate to protect the child's interests. See, e.g., Neilson v. ColgatePalmolive Co., 199 F.3d 642, 652 (2d Cir. 1999); Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir. 1978). Withal, the limitations imposed by any such order must be no broader than necessary to protect the child. See Doe, 697 F.2d at 1120-21;
6 The district judge, while allowing the psychological evaluations to proceed, did worry that those examinations might be detrimental to the plaintiffs. But that concern cannot be transplanted root and branch to the different question of access to counsel.
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Ti.B., 762 A.2d at 29-30. Viewed through this prism, the total denial of access imposed here cannot withstand scrutiny. We hold, therefore, that the court below abused its discretion when it completely denied the plaintiffs access to their lawyers prior to trial.
This holding leaves only the question of prejudice — and prejudice is manifest. Apart from a dubious suggestion that plaintiffs' retained psychologist was able to testify about topics that attorney-client meetings might have covered, the State has made no serious attempt to explain how the total denial of access to counsel could be harmless.
The right to counsel is a right of the highest order of importance, and keeping a lawyer from meeting with his client before going to trial frustrates that right. Where, as here, a restraint of that magnitude is imposed without substantial justification, we think that prejudice can fairly be presumed. Cf. United States v. Cronic, 466 U.S. 648, 658-59 (1984) (identifying situations implicating the right to counsel where the circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified"). It follows that the judgment below must be vacated. See Doe, 697 F.2d at 1121.
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B. Protective Order. Although the judgment below must be vacated, see supra Part II(A), the prospect of further proceedings counsels in favor of resolving the plaintiffs' contention that the district court erred when it barred discovery of DCYF's policies and customs.7 We start with first principles: district courts must be afforded wide latitude in the management of discovery, and appellate review of such matters is correspondingly deferential. We will disturb a district court's discovery ruling "only upon a clear showing of manifest injustice, that is, where the . . . order was plainly wrong and resulted in substantial prejudice." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989). Though this sets a high bar, an order limiting the scope of discovery may constitute reversible error when it is sufficiently prejudicial and based upon an incorrect legal standard or a misapplication of law to fact. See Ji v. Bose Corp., 626 F.3d 116, 122 (1st Cir. 2010); Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 8 (1st Cir. 2001). In the case at hand, the plaintiffs seek to impose liability upon official-capacity state defendants under section 1983. As such, their suit is the functional equivalent of a suit against the sovereign. See Will v. Mich. Dep't of State Police,
7 The parties and the court below appear to use the terms "policies and customs," "policies, practices, and customs," and "policies and practices" interchangeably. For ease in exposition, we refer throughout to policy and custom discovery.
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491 U.S. 58, 71 (1989). In such a suit, it is black letter law that the plaintiffs must prove that a policy or custom of the State contributed to the alleged violations of federal law in order to prevail. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Burrell v. Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002). Here, moreover, the plaintiffs seek forward-looking injunctive relief rather than damages; thus, their flagship substantive due process claim turns primarily on whether DCYF's policies and customs subject them to an unconstitutional risk of future harm. See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1197-98 (10th Cir. 2010); see also Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (explaining that injunction may issue to remedy constitutional violation without waiting for manifested harm).
Against this backdrop, we examine the protective order. The lack of a separate document embodying the terms of the protective order hampers this examination. We work with what we have.
The magistrate judge made his ruling in a written rescript. See Cassie I, slip op. at 1-3. This rescript described the protective order as limiting discovery to "nonprivileged information that is relevant to the substantive claims of the individual" plaintiffs. Id. at 2. The plaintiffs appealed the protective order, see Fed. R. Civ. P. 72(a), plausibly characterizing it as a complete bar to policy and custom discovery.
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This characterization was consistent with the arguments that the State had made to the magistrate judge. When asked to describe its vision of how discovery should unfold, the State explained:
Now, you speak to policies, practices and potentially customs that may have impacted the children. We believe that [the plaintiffs] need to be able to show that there's been some harm to these individual children in the first instance before you move on to the broader picture of what other policies, practices and procedures may be implicated. Similarly, the State's supporting memorandum argued "that the requested discovery relating to the policies, patterns or practices . . . is irrelevant to the determination of [the plaintiffs'] substantive claims. The discovery concerning policies, patterns or practices . . . should be reserved until after [the plaintiffs'] individual substantive claims are addressed." In sum, the State drew a sharp distinction between discovery pertaining to harm to the individual plaintiffs (which it argued should be allowed) and policy and custom discovery (which it argued should not be allowed). The district judge upheld the proscription. She concluded that the protective order was in line with her decision to resolve the individual claims before addressing class certification and, thus, was neither clearly erroneous nor contrary to law. In a subsequent ruling, the magistrate judge confirmed that the plaintiffs had correctly apprehended the scope of the
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protective order. He made pellucid that the protective order "effectively precluded [the plaintiffs] from seeking policy or practice discovery." Cassie II, 2013 WL 785621, at *2. The magistrate judge's straightforward characterization of his own order dissolved any possible ambiguity concerning the scope of permissible discovery. Cf. Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987) (explaining that "uncertainty as to the meaning and intendment of a district court order can sometimes best be dispelled by deference to the views of the writing judge"). Thus, the protective order foreclosed the plaintiffs from seeking plainly relevant discovery.
This was an abuse of discretion: a district court may not impose discovery restrictions that preclude a suitor from the legitimate pursuit of evidence supporting her cause of action. See Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559-60 (11th Cir. 1985) (finding abuse of discretion when court limited discovery to single issue though other issues were relevant); Trevino v. Celanese Corp., 701 F.2d 397, 405-06 (5th Cir. 1983) (vacating protective order that barred highly relevant discovery based on court's misapprehension of nature of plaintiff's claims). Nor can it be doubted that the denial of discovery was prejudicial. The protective order forced the plaintiffs to attempt to prove their substantive claims without essential evidence. Given the applicable legal standard, their attempt was destined to fail.
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That is exactly what happened: the district judge dismissed the substantive due process claim because she concluded that "[t]here was . . . no evidence to establish that DCYF's current policies and practices — or any deliberate disregard of such policies and practices — resulted in harm to the [plaintiffs] or that the [plaintiffs] were subjected to unreasonable risk while in DCYF's care." Cassie III, 16 F. Supp. 3d at 79. It is, therefore, nose-on-the-face plain that the adverse decision at trial rested in substantial part on the plaintiffs' failure to adduce precisely the sort of evidence that the protective order prevented them from discovering.
The State offers an interleaved series of arguments in an attempt to shore up the protective order. These arguments are unpersuasive.
The State begins with a suggestion that any failure to obtain policy and custom evidence is the plaintiffs' fault. It maintains that the magistrate judge's decision left the door open for policy and custom discovery, and the plaintiffs — had they elected to do so — could have walked through that portal. The State reaches this hopeful conclusion, however, by selectively parsing the record.
The State's argument emphasizes a statement in the magistrate judge's December 17, 2012 rescript to the effect that "a reasonable range of discovery focused on the [plaintiffs] and the
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various 'system failures' [they have] alleged" would be permitted. Cassie I, slip op. at 3. This language arguably gave rise to a latent ambiguity about the availability of custom and policy discovery. But any ambiguity created by this language was dispelled by how the parties treated the protective order and by the magistrate judge's clarification. See Cassie II, 2013 WL 785621, at *2 (vouchsafing that the protective order "effectively precluded [the plaintiffs] from seeking policy or practice discovery"). The State's optimistic reading of the protective order simply cannot be reconciled with either the parties' actions or the magistrate judge's construction of his own ruling.
In a related vein, the State asserts that it produced ample policy and custom evidence during discovery and that the plaintiffs actually submitted some policy and custom evidence at trial. Building on this foundation, the State further asserts that the protective order worked no prejudice.
There is a grain of truth to these assertions. After all, the plaintiffs did introduce some policy and custom evidence at trial. But there is no way to tell either how much policy and custom evidence somehow came to the plaintiffs' attention or — perhaps more important — how much policy and custom evidence was withheld during discovery. The State has not identified any practical method for allowing us to explore that void, and there is no carefully drawn protective order upon which we can rely. The
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only thing about which we can be certain is that policy and custom discovery was completely off limits after the magistrate judge issued the protective order.8
Finally, the State exhorts us to affirm the protective order on the ground that the plaintiffs failed to specify what policy and custom information they were seeking when they moved to reopen discovery prior to trial. Its exhortation invokes our admonition, made in the context of Federal Rule of Civil Procedure 56(d), that a party seeking additional discovery must "articulate[] a plausible basis for the . . . belief that previously undisclosed or undocumented facts exist, that those facts can be secured by further discovery, and that, if obtained, there is some credible prospect that the new evidence will create a trialworthy issue." Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 44 (1st Cir. 1998). But there was no Rule 56(d) motion here — indeed, the district judge directed the parties to forgo summary judgment practice — and the comparison that the State seeks to make is apples to oranges.
8 The record does not support the district judge's intimation that the plaintiffs were given an adequate opportunity to obtain policy and custom evidence. Although the plaintiffs were allowed to depose certain DCYF policymakers, there is no showing that they actually received any meaningful policy or custom evidence by means of those depositions. That some depositions were taken says nothing about the interplay between the protective order and ongoing deposition practice.
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Unlike a typical Rule 56(d) motion, the plaintiffs' motion involved discovery that previously had been denied by court order. A party whose timely discovery request has been denied cannot reasonably be expected to describe precisely the information responsive to that request that may have been withheld from her. It follows that, in the circumstances of this case, the plaintiffs' motion seeking to reopen discovery was sufficient.
We add a caveat. Our opinion should not be read to suggest that the plaintiffs are entitled to the full range of policy and custom discovery that they sought in the district court. Both the magistrate judge and the district judge expressed legitimate concerns about the breadth of the plaintiffs' discovery requests and the State's plaint that complying with those requests could prove unduly burdensome. But a categorical preclusion of all policy and custom discovery was an over-the-top response to those concerns. On remand, the district court, in its sound discretion, may balance competing considerations of relevance and burdensomeness, and place reasonable limits on the scope of the remaining discovery. See, e.g., Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391, 402-03 (1st Cir. 2005).
C. Class Certification. Throughout the proceedings below, the plaintiffs beseeched the district court to certify a plaintiff class sooner rather than later. The district court, for reasons of judicial
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economy, initially delayed consideration of class certification pending resolution of anticipated motions for summary judgment. But the court then shifted gears: it scrapped any thought of dispositive motions and declared that it would not rule on class certification until after trial. When it later ruled for the State midway through trial, class certification became a dead letter.
The plaintiffs argue that the district court's handling of this issue constituted an abuse of discretion. They submit that the court should have addressed class certification early in the proceedings; that the specter of mootness (through the collateral effects of aging and adoption) made time of the essence; and that, in all events, it was inappropriate to defer a ruling on class certification until after trial on the merits.
Because this case must be remanded for further proceedings, we do not decide the class certification issue. We do, however, offer some general guidance to the district court.
The length of time that a case is pending is not the sole determinant of when a class certification decision should be made. The Civil Rules speak of the need to address class certification at "an early practicable time." Fed. R. Civ. P. 23(c)(1)(A). The word "practicable" imports some leeway in determining the timing of such a decision. See Howe v. Townsend (In re Pharm. Indus. Average Wholesale Price Litig.), 588 F.3d 24, 40 (1st Cir. 2009) (explaining that Rule 23(c)(1)(A) gives a court "flexibility to
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wait to certify the class until the court feels it understands the case and the issues it raises"); Wright v. Schock, 742 F.2d 541, 543 (9th Cir. 1984) (similar).
Class certification decisions are context-specific, and each case must be viewed in terms of its own facts. As a general matter, however, Rule 23 permits a district court, in appropriate circumstances, to defer the issue of class certification until after disposing of summary judgment motions. See, e.g., Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 896 (8th Cir. 2014); Curtin v. United Airlines, Inc., 275 F.3d 88, 93 (D.C. Cir. 2001); Cowen v. Bank United of Tex., 70 F.3d 937, 941 (7th Cir. 1995); Wright, 742 F.2d at 543-44. In such a situation, consideration of summary judgment motions is likely to furnish the court the information that it needs to "understand[] the case and the issues it raises." Pharm. Indus., 588 F.3d at 40.
Notwithstanding this flexibility, we are aware of no precedent authorizing a district court, over objection, to conduct a full-blown trial on the merits without pausing to take up a timely motion for class certification. The reason for this lack of precedent seems obvious: at best, trying the individual claims first may prove inefficient; at worst, doing so may create substantial prejudice. See Paxton v. Union Nat'l Bank, 688 F.2d 552, 558-59 (8th Cir. 1982); Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 275 (4th Cir. 1980); see also Rodriguez v. Banco
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Cent., 790 F.2d 172, 175 (1st Cir. 1986). The bottom line is that staging a case in this manner puts the cart before the mule.
With these considerations in mind, we counsel the district court that, upon completion of discovery in this case, the parties should be given an opportunity to file dispositive motions. If the case survives summary judgment with the class certification issue still velivolant, the court should decide the motion for class certification. III. CONCLUSION
We need go no further. The district judge and the magistrate judge, as well as the parties, have labored long and hard over this case, and we are reluctant to push the reset button. But fairness is (and must be) the hallmark of federal-court litigation, and the essence of fairness is the provision of a level playing field. Here, however, the two errors that we have discussed — the total denial of counsel's access to their clients and the imposition of an overly broad protective order — impermissibly tilted the playing field. Consequently, we must vacate the judgment and remand the case for further proceedings consistent with this opinion. Costs are to be taxed in favor of the plaintiffs.
Vacated and Remanded.
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 Case 1:07-cv-00241-S-PAS Document 550 Filed 10/22/15 Page 1 of 51 PageID #: 18134

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

CASSIE M., by Next Friend Kymberli Irons; )

ANDREW C., by Next Friend Gregory C. )

Elliott; MATTHEW R., by Next Friend

)

Gregory C. Elliott; ERIN M., by Next Friend )

Elaine Macintosh; and SEAN M., by Next )

Friend Elaine Macintosh, for themselves and )

those similarly situated*,

)

)

Plaintiffs,

)

)

v.

)

)

GINA M. RAIMONDO, in her official

)

capacity as Governor of the State of Rhode )

Island; ELIZABETH ROBERTS, in her )

official capacity as Secretary of the

)

Executive Office of Health & Human

)

Services; and KEVIN AUCOIN, in his

)

official capacity as Acting Director of the )

Department of Children, Youth & Families, )

)

Defendants.

Class Action Civil Action No. 1:07-cv-00241-S-PAS

FOURTH AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
AND REQUEST FOR CLASS ACTION

* pseudonyms are used for all minor named plaintiffs.

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TABLE OF CONTENTS I. Introduction............................................................................................................................. 1
II. Jurisdiction and Venue............................................................................................................ 3
III. Class Action Allegations ........................................................................................................ 4
IV. The Parties.............................................................................................................................. 6
A. The Named Plaintiffs ....................................................................................................... 6
B. The Defendants .............................................................................................................. 15
V. The Rhode Island Child Welfare System ........................................................................... 16 VI. Defendants’ Knowledge Regarding Systemic Failings in Rhode Island’s Child Welfare
System................................................................................................................................ 18
VII. Systemic Child Welfare Failings and the Resulting Harms to Children............................ 20
A. Common Systemic Ailments Place Children in Foster Care at Serious Risk of Harm.. 20
1. Excessive Caseloads Overburden Caseworkers, Making It Impossible for Them to Ensure Child Safety .................................................................................................... 20
2. Caseworkers’ Caseloads Leave Them Unable to Make Timely and Adequate Visits .....................................................................................................................................24
3. DCYF Operates an Inadequate Licensing Unit, Resulting in a Chronic Shortage of Safe and Licensed Placements.................................................................................... 26
4. CPS Investigators Are Overburdened and Thus Unable to Adequately Investigate Abuse and Neglect in Care ......................................................................................... 29
5. As a Result of These Systemic Failings, Plaintiff Children Are Abused and Neglected in Foster Care ............................................................................................ 32
B. Defendants Place Plaintiff Children in Inappropriate Homes and Institutions, Resulting in Serious Risk of Harm ................................................................................................. 33

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1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements .................................................................................................................. 33
2. As a Result of the Inadequate Array, Plaintiff Children Languish in Congregate Care .....................................................................................................................................35
3. As a Result of the Inadequate Array, Plaintiff Children Are Separated from Their Siblings ....................................................................................................................... 38
C. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Case Plans ...................................................................................................................... 39
D. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents ............................................................................................................................ 40
VIII. Causes of Action................................................................................................................ 42
IX. Prayer for Relief ................................................................................................................ 44

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I. Introduction 1. In July 2015, Governor Gina Raimondo gave a frank description of how the
Rhode Island Department of Children, Youth, and Families (“DCYF”) performs for the children in its care: “Every kid deserves a chance. These families and children are facing unbelievable struggles. The way we’ve been delivering services — we’ve just been letting them down.” It’s “an agency in crisis,” the Governor reported, and an “extremely dysfunctional system.”
2. The state’s Child Advocate, Regina Costa, painted a similarly bleak picture in her testimony to the Senate Task Force on the Department in November 2014. When discussing the state’s system of care reform efforts, she testified, “[W]e should be asking, ‘Are DCYF children and families better off today than they were two years ago?’ I think the clear answer to this question has to be ‘NO.’”
3. This civil rights class action is brought on behalf of vulnerable children in the foster care custody of the state. For far too long, state officials’ actions and inactions have led to fundamental, systemic failings that place all children in their foster care custody at unreasonable risks of serious harm. Despite years of warning regarding DCYF’s deficient performance from the federal government, the Rhode Island legislature, and third-party reviewers, and despite recognition by the state itself, children in the state’s foster care still suffer unnecessary harms.
4. Plaintiffs seek declaratory and injunctive relief to remedy six of the most serious failings that, eight years after this lawsuit was initiated, continue to plague DCYF.
Specifically,  Defendants assign excessive caseloads to their caseworkers, making it impossible for them to monitor, serve, and visit the children in their care: State, federal, and third-party reviews have long warned that DCYF caseworkers carry unmanageable caseloads. These caseloads far exceed
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professional standards and prevent caseworkers from undertaking tasks that are critical to children’s safety and well-being, including adequate and timely visitation with children in care. In March 2012, for example, nearly one-third of children in out-of-home care did not have a documented face-to-face visit with their caseworker. Caseloads have only increased since that time. In 2015, the Governor’s Resource Team reported that “[c]aseloads are incredibly high for DCYF staff causing low morale and turnover.”
 Defendants fail to appropriately license and oversee foster care placements: The DCYF licensing unit is inadequately staffed and overburdened, leaving it unable to ensure the basic safety of foster homes and institutions in which children are placed. As of April 2012, for example, 159 children in DCYF’s legal custody were living in unlicensed non-kin foster care placements.
 Defendants fail to adequately investigate abuse and neglect in foster care: CPS Division investigators are assigned caseloads that far exceed professional standards. From February 2012 to August 2012, for example, the majority of CPS investigators carried caseloads that were twice the highest number provided for by professional standards. Faced with such an unmanageable workload, investigators are unable to adequately investigate and timely complete investigations of abuse or neglect of children in foster care.
 Defendants fail to maintain an adequate placement array to meet the needs of all children in care, and as a result, children are placed in inappropriate and/or unsafe placements: Federal law and widelyrecognized professional standards require that children in foster care be placed in the least restrictive, most family-like setting suited to their needs. In Rhode Island, however, children who need family placements are too often warehoused in group facilities due to the lack of appropriate foster homes. Twenty-nine percent of the state’s foster children live in expensive emergency shelters, group homes, and other institutions — a rate more than twice the national average.
 Defendants fail to provide children with timely and adequate case plans: Preparing case plans is a federally-mandated child welfare practice that is vital to children’s safety and well-being while in foster care. DCYF fails to ensure, however, that children are provided with complete and timely case plans. For the period from February 1, 2015 to April 30, 2015, for example, only 43.94 percent of case plans reviewed by the agency in Region 1 (the most populous of the regions), 28.81 percent in Region 2, 65.38 percent in Region 3, and 47.29 percent in Region 4 were written in a timely manner and included measurable behavioral change outcomes.
 Defendants do not provide adequate foster care maintenance payments to foster parents: Compliance with federal law requires DCYF to pay maintenance payments to family foster care providers to cover the costs
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associated with caring for children. The rates paid to Rhode Island’s foster parents, however, are far below the costs associated with caring for children in foster care.
5. Plaintiff Children suffer serious harms, and daily confront an unreasonable
risk of harm, as a direct result of these failings. For example,
 Plaintiff Children suffer abuse or neglect in foster care at startling rates: Since Federal Fiscal Year (“FFY”) 2004, children in DCYF’s custody have been subjected to abuse or neglect at a rate of between two and over four times the federal benchmark for acceptable practice. In FFY 2013 alone, DCYF reported 71 incidents of abuse or neglect of children in their care.
 Plaintiff Children’s developmental and emotional well-being is harmed by overly restrictive group care: Most children need to live with families and not in institutions. Placement in overly restrictive group homes, shelters, and institutions can cause significant developmental and emotional harms. This is especially true for young children.
 Plaintiff Children are unnecessarily separated from their siblings: The state’s inadequate placement array leads to the unnecessary separation of siblings — often the main source of stability in the life of a child in foster care. Rhode Island’s Child Advocate testified that “limited resources in the foster care system have resulted in,” among other things, “[s]eparation of siblings who come into care.” Sibling relationships are further disrupted when overburdened DCYF staff are then unable to ensure visits for siblings who are not placed together. In 2010, for example, the federal government found that siblings not placed together had monthly visits in only 60 percent of applicable cases.
6. This lawsuit seeks to compel Defendants — the Governor of the State of
Rhode Island, the Secretary of the Executive Office of Health and Human Services, and the
Director of the Department of Children, Youth and Families — to meet their legal obligations to
care for and protect Rhode Island’s abused and neglected children in state custody.
II. Jurisdiction and Venue
7. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of
the United States Constitution and federal statutes. This court has jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343(a)(3).
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8. Venue is proper here pursuant to 28 U.S.C. § 1391(b). The claims arise in this district. III. Class Action Allegations
9. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
10. The Class is defined as “all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect” (“Plaintiff Children”). As of November 2014, approximately 1,800 children were in the legal custody of DCYF for foster care services due to reported or substantiated allegations of abuse or neglect. The Class is sufficiently numerous to make individual joinder impracticable.
11. The questions of law and fact raised by the Named Plaintiffs’ claims are common to and typical of those of the Plaintiff Children they seek to represent. Named Plaintiffs are all children in Defendants’ legal custody who rely on Defendants for their safety and wellbeing. They are at a common risk of harm by the systemic deficiencies of Rhode Island’s child welfare system.
12. Questions of fact common to the Class include: a. Whether Defendants fail to protect Plaintiff Children from abuse and neglect through inadequate provision of casework, visitation, licensing, and investigation services, causing significant harm to their health and well-being; b. Whether Defendants fail to provide Plaintiff Children with safe foster care placements, causing significant harm to their health and well-being; c. Whether Defendants fail to maintain an adequate statewide placement array that enables them to place Plaintiff Children in the least restrictive and most family-like settings suited to their needs
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in compliance with federal law, and to avoid unnecessary placement in institutional and group facilities that may cause significant harm to children’s health and well-being;
d. Whether Defendants fail to provide Plaintiff Children with the supports necessary to maintain family relationships where appropriate, including placing siblings together and providing children with vital parent and sibling visits, causing significant harm to their health and well-being;
e. Whether Defendants fail to provide Plaintiff Children with timely case plans containing federally mandated elements as required by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations; and
f. Whether Defendants fail to provide adequate foster care maintenance payments as required by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations.
13. Questions of law common to the Class include:
a. Whether Defendants’ actions and inactions violate Plaintiff Children’s substantive due process rights to be free from harm while in state custody, guaranteed by the Fourteenth Amendment to the United States Constitution;
b. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to family integrity, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution; and
c. Whether Defendants’ actions and inactions violate Plaintiff Children’s rights to timely case plans containing mandated elements and to adequate foster care maintenance payments, established by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, and relevant federal regulations.
14. Named Plaintiffs will fairly and adequately protect the interests of the Class
they seek to represent.
15. Named Plaintiffs and Plaintiff Children are represented by:
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a. Attorneys employed by Children’s Rights, a nonprofit legal organization whose attorneys have substantial experience and expertise in child welfare class actions nationally;

b. Weil, Gotshal & Manges LLP, a global private law firm with extensive experience in complex civil litigation including class action litigation and a non-litigation office in Providence; and

c. John Dineen, a licensed Rhode Island attorney with substantial experience litigating civil rights matters in the federal courts.

16. The attorneys and entities listed above have investigated all claims in this

action and have committed sufficient resources to represent the Class.

17. Each Named Plaintiff appears by a next friend, and each next friend is

sufficiently familiar with the facts of the child’s (or children’s) situation to fairly and adequately

represent the child’s (or children’s) interests in this litigation.

18. Defendants have acted or failed to act on grounds generally applicable to

the Class, necessitating declaratory and injunctive relief for the Class. Plaintiffs’ counsel knows

of no conflicts between or among members of the Class.

IV. The Parties

A. The Named Plaintiffs

CASSIE M.

19. Cassie is an 18-year-old girl who has been in foster care for the last nine

years. Throughout her time in custody, DCYF has moved Cassie through numerous and

inappropriate placements and separated her from her four sisters.

20. In February 2006, Cassie and her two sisters who had been living together

in their mother’s home were removed from their mother’s care based on her continued failure to

comply with court-ordered treatment plans.

21. DCYF placed Cassie and her two sisters into separate foster homes, with no

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documented reason for the separation. DCYF moved Cassie to a new foster home less than two weeks later. In June 2006, Cassie’s foster mother revealed to DCYF that she herself had been “red flagged” by DCYF. DCYF only then realized that the foster mother had an open case with DCYF and that the agency had been planning to terminate her foster parent license. Nonetheless, DCYF kept Cassie in this home for another nine months, when it moved her to a specialized foster home.
22. Also in 2006, Cassie’s younger sister, who was just six years old, was placed in a shelter. DCYF kept this young girl in two shelter placements for more than nine months. Cassie was very upset that her sister was in a shelter and asked multiple times for her sister to live with her.
23. In August 2007, when she was 10 years old, DCYF moved Cassie to a residential treatment center. In this placement, Cassie was not provided the close supervision she needed and was subjected to numerous physical restraints. In September 2008, Cassie was freed for adoption, and in February 2009 Cassie’s DCYF caseworker and supervisor decided she needed a specialized family home placement rather than institutional care. No home was available, however, and as a result Cassie remained in the treatment center for 16 more months. DCYF assessments from this period indicate that Cassie was not doing well in this placement.
24. In June 2010, Cassie turned 13 and aged out of her residential facility. Although Cassie continued to need a foster home, she was moved to a group home where she remained until early 2012. Between the two facilities, Cassie spent over four years in institutional placements. Cassie was next placed with a foster family for approximately one year. When that foster mother became unable to continue fostering, Cassie was returned to group care
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for several weeks before moving through a string of foster family homes and ultimately returning to a group placement in February 2013.
25. In November 2013, DCYF decided to move Cassie to a lower level of care and she was placed on a waitlist. Cassie moved to the less restrictive facility in March 2014. This placement lasted just over a year, until Cassie moved into a semi-independent living program in May 2014. Cassie was placed into a transitional living program in January 2015 — her 26th outof-home placement. During this period, Cassie began to frequently go AWOL from her program, which resulted in two brief shelter care placements. Cassie graduated from high school in 2014; however, she was assessed in 12th grade as reading at a 3rd grade level. Cassie applied to colleges but was not accepted.
26. Cassie’s case file indicates that at numerous points in time, she did not have a complete and updated case plan that included all federally required elements. Cassie’s plans were expired for periods of two to five months in 2012, 2013, and 2014.
27. Upon information and belief, Cassie remains in DCYF custody today and continues to be placed in the transitional living program. In July 2015, Cassie gave birth to a child who was removed into DCYF custody. As of July 2015, Cassie was neither working nor attending school.
28. As a result of Defendants’ actions and inactions, Cassie has been and continues to be irreparably harmed. Defendants have violated Cassie’s constitutional and statutory rights by failing to protect her from harm; by separating her from her sisters; by failing to provide her with appropriate, least restrictive placements; by failing to provide her with timely and updated case plans that include all federally mandated elements; and by failing to pay to her
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foster parents a rate that covers the cost of statutory elements of care, all of which are required by law and widely-recognized professional judgment.
29. Named Plaintiff CASSIE M. appears through her next friend Kymberli Irons. Ms. Irons has worked in the Providence School Department for over 20 years and has been a special educator for approximately 30 years. Ms. Irons holds Master’s degrees in Special Education and in Integrated Education. She has served as a Behavior Specialist with the Providence School Department for over 10 years. Ms. Irons worked with Cassie as her Behavior Specialist when Cassie was between the ages of eight and nine. Ms. Irons also met with Cassie’s mother, and spoke with Cassie’s classroom teacher, principal, and assistant principal about Cassie on multiple occasions. Ms. Irons is fully capable of representing Cassie’s best interests.
ANDREW C. 30. Andrew is a nine-year-old boy who has been in DCYF custody since he was four years old. During his time in foster care, he has experienced at least one inappropriate placement — where his foster parent was unable to properly care for him, leading to his hospitalization — has suffered sexual abuse while in group care, and has been separated from his younger siblings. 31. Andrew entered DCYF custody in October 2010 after his mother suffered a psychotic episode and was arrested. 32. Initially, Andrew was placed in a treatment foster home in Woonsocket with his younger sister. He also had an older half-sibling who was placed with their grandfather in New York. Although Andrew was stable in the treatment foster home, the foster mother did not want to adopt Andrew. He remained in this home for three and a half years. 33. In March 2014, DCYF moved Andrew and his sibling into the home of a woman who had visited Andrew while in his previous home and acted as his “mentor.” DCYF
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placed Andrew in this pre-adoptive home over multiple objections — including by Andrew’s clinician, service providers and his school — that the foster mother did not demonstrate the ability to manage Andrew’s behaviors. While Andrew was in this home, the foster mother was unable to properly care for him and would regularly resort to calling 9-1-1 to manage even minor behavioral issues, such as Andrew refusing to put on his shoes. Soon after his placement in this home, Andrew was hospitalized due to behavior issues.
34. DCYF subsequently moved Andrew into a group care placement. Andrew’s younger sibling remained in the pre-adoptive home. Upon information and belief, Andrew has been separated from this sibling since leaving the pre-adoptive home.
35. Upon information and belief, while in group care, Andrew was sexually abused by boys while on a bus. Andrew subsequently began to act out sexually, and could in DCYF’s judgment no longer be placed in homes with younger children, including his sister.
36. Upon information and belief, as of the spring of 2015, Andrew remained in group care.
37. As a result of Defendants’ actions and inactions, Andrew has been and continues to be irreparably harmed. Defendants have violated Andrew’s constitutional and statutory rights by failing to protect him from harm; by separating him from his sibling; and by failing to provide him with appropriate, least restrictive placements, all of which are required by law and widely-recognized professional judgment.
38. Named Plaintiff ANDREW C. appears through his Next Friend, Gregory C. Elliott. Dr. Elliott is Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for over 30 years. Dr. Elliott is a social psychologist, specializing in the development of the individual. In his work he has dealt with issues of child maltreatment and the
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integration of the individual into society. Due to his expertise and research, Dr. Elliott has been held by the First Circuit in this case to be “aware of the issues and problems children face in foster care and he is familiar with the perils to which Plaintiffs have been exposed,” and therefore declared an appropriate next friend for four named plaintiff children whom he did not know personally in the instant lawsuit. Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 93 (1st Cir. 2010).
MATTHEW R. 39. Matthew is an eleven-year-old boy who has been in DCYF care for approximately three years. During that time, he has been placed in a kinship home where a registered sex offender was living, sexually abused by another child in a foster home, and separated from his two older siblings. 40. On information and belief, Matthew was removed by DCYF for parental neglect in late 2011 or early 2012 and placed with a paternal aunt in a kinship placement in Woonsocket. He was removed from that placement in March 2012 because a registered sex offender was living in the home. 41. DCYF subsequently placed Matthew in a foster home in Woonsocket. However, due to problems with the biological daughter of the foster parent, Matthew was removed from this placement in February 2013 and placed in a different foster home. 42. Matthew bonded with the foster parents in the new foster home. Two other boys residing in the home were approximately two or three years older than Matthew. Matthew eventually disclosed to his foster parents that one of the older boys had been dry humping him. After further discussions, it became apparent that the older boy had engaged in additional forceful sexual conduct with Matthew. Both of the older boys in the home were removed, but Matthew remained in the home initially.
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43. DCYF investigated the home and initially concluded that there was no negligence on the part of the foster parents, but later reversed its finding and indicated the foster parents for lack of supervision. Matthew was removed in June 2014 and placed in a different treatment foster home. The foster parents subsequently appealed the indication of lack of supervision and it was overturned.
44. Although Matthew’s permanency goal for his early years in foster care was reunification, in June 2013 DCYF learned that his mother was pregnant again and had failed to notify DCYF. DCYF subsequently moved for termination of parental rights.
45. While in foster care, Matthew has not been placed with either of his two older siblings.
46. Upon information and belief, Matthew remains in care in the foster home placement to which he was moved in June 2014.
47. As a result of Defendants’ actions and inactions, Matthew has been and continues to be irreparably harmed. Defendants have violated Matthew’s constitutional and statutory rights by failing to protect him from harm; by separating him from his siblings; and by failing to provide him with safe and appropriate placements, all of which are required by law and widely-recognized professional judgment.
48. Named Plaintiff MATTHEW R. appears through his Next Friend, Gregory C. Elliott. Dr. Elliott is Professor of Sociology at Brown University in Providence, Rhode Island, where he has taught for over 30 years. Dr. Elliott is a social psychologist, specializing in the development of the individual. In his work he has dealt with issues of child maltreatment and the integration of the individual into society. Due to his expertise and research, Dr. Elliott has been held by the First Circuit in this case to be “aware of the issues and problems children face
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in foster care and he is familiar with the perils to which Plaintiffs have been exposed,” and therefore declared an appropriate next friend for four named plaintiff children whom he did not know personally in the instant lawsuit. Sam M., 608 F.3d at 93.
ERIN M. and SEAN M. 49. Erin is a two-year-old girl and Sean is a four-month-old boy. Both children were removed from their mother at birth and placed into the same kinship foster home. During their time in care, Erin and Sean have been separated from their older sibling without adequate visitation and their foster parents have received only the basic foster care board rate for their care. 50. Erin and Sean have an older half-brother, S., who is nine years old. S. was removed from his mother due to drug issues, reunited, and removed again in 2011 when he was about five. Upon his second removal, S. was briefly placed in a foster home before being placed with his maternal grandmother, Elaine Macintosh. Ms. Macintosh has cared for S. continuously since then and has an active foster parent license. In January 2015, Ms. Macintosh took permanent guardianship of S. 51. Erin was born in 2013. On information and belief, she was removed at birth due to her mother’s ongoing drug issues. At that time, Ms. Macintosh offered to care for Erin together with S. DCYF, however, placed Erin in a fictional kin home with her mother’s boyfriend’s sister and her husband. The kinship foster parents only speak Spanish, a language that the biological mother, Ms. Macintosh, and S. do not speak. 52. Sean was born in May 2015. At the time of his birth, his mother had been clean for seven months and was complying with all services in her service plan. Nevertheless,
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DCYF placed a hold on Sean and then removed him into custody. Ms. Macintosh offered to care for Sean, but DCYF instead placed him with Erin in the kinship foster home.
53. On information and belief, Erin and Sean share the same small bedroom with their kinship foster parents. There are safety concerns about the home.
54. On information and belief, the kinship foster parents have received and continue to receive only the basic foster care board rate for Erin and Sean’s care.
55. Erin, Sean, and S. were assigned to the same caseworker from S.’s initial entry into care through late August 2015 (“the DCYF caseworker”). Throughout the four years that S. was in DCYF custody and placed with Ms. Macintosh, the DCYF caseworker visited him in placement only four or five times. Several times, the DCYF caseworker failed to show up for scheduled visits. On information and belief, the DCYF caseworker and his replacement have also failed to make required visits with Erin and Sean.
56. In August 2015, in response to a request from Ms. Macintosh and the children’s mother, the family court judge ordered that DCYF assign a new caseworker to the family’s case. Ms. Macintosh and the children’s mother had been requesting a new caseworker for three years prior to entry of this order.
57. The DCYF caseworker and his replacement have failed to facilitate and ensure visitation between Erin, Sean, and S. On information and belief, the family court ordered weekly visitation between Erin and S., and later included Sean as well. The DCYF caseworker and his replacement have not ensured that such visitation took place, leaving the matter up to Ms. Macintosh and the kinship foster parents. Though Ms. Macintosh requested help from DCYF in arranging visits and obtaining the kinship foster parents’ cooperation, no help was provided. As a result, Erin and Sean have not regularly visited with S. during their time in care.
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58. Upon information and belief, Erin and Sean remain placed in the fictive kinship foster home where they were placed upon entering care.
59. As a result of Defendants’ actions and inactions, Erin and Sean have been and continue to be irreparably harmed. Defendants have violated Erin and Sean’s constitutional and statutory rights by failing to provide adequate foster care maintenance payments, by separating them from their sibling S., and by failing to provide them with safe and appropriate placements, all of which are required by law and widely-recognized professional judgment.
60. Named Plaintiffs ERIN M. and SEAN M. appear through their Next Friend, Elaine Macintosh. Ms. Macintosh is the children’s biological grandmother and has permanent guardianship of their half-brother, S. Ms. Macintosh has been involved with both Erin and Sean since their births and is aware of their experiences and issues in state custody. She is also a former gymnastics teacher with 27 years of experience teaching disabled children and adults. Ms. Macintosh is fully capable of representing Erin and Sean’s best interests as their Next Friend.
B. The Defendants 61. Defendant GINA M. RAIMONDO is the Governor of Rhode Island and is
sued in her official capacity. Pursuant to Article IX, Section 1 of the Constitution of Rhode Island of 1986, the executive power of the state is vested in the Governor. Pursuant to Article IX, Section 2 of the Constitution of Rhode Island of 1986, the Governor is responsible for ensuring that all executive departments and agencies within the state, including DCYF, faithfully execute and comply with applicable federal and state law. Governor Raimondo maintains her principal office at the Office of the Governor, State House, 82 Smith St., Room 115, Providence, Rhode Island, 02903.
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62. Defendant ELIZABETH ROBERTS is the Secretary of the Executive Office of Health and Human Services in Rhode Island and is sued in her official capacity. The Executive Office of Health and Human Services provides common strategic planning, fiscal management, and related policy and programmatic oversight to and across designated human services departments within the Rhode Island executive branch, including DCYF. Secretary Roberts maintains her principal office at the Pastore Complex, Louis Pasteur Building, 600 New London Ave., Cranston, RI 02920.
63. Defendant KEVIN AUCOIN was named the Acting Director of the Department of Children, Youth and Families in 2015 and is sued in his official capacity. Pursuant to Section 42-72-1 of the Rhode Island General Laws, the DCYF Director is responsible for administering certain child welfare services and programs, including services and programs provided and administered by DCYF, and assuring that all such services and programs operate in conformity with constitutional, statutory, and regulatory requirements. The Director maintains a principal office at the Department of Children, Youth and Families, 101 Friendship Street, Providence, Rhode Island, 02903. V. The Rhode Island Child Welfare System
64. The Department of Children, Youth and Families is responsible for ensuring the safety and well-being of the children it takes into custody.
65. DCYF has the duty to deliver child protective services, which include the investigation and assessment of reports of abuse and neglect occurring in family homes and in foster care placements, and the implementation of timely, appropriate corrective steps, including a child’s removal from home or a foster care placement, if warranted, to keep the child safe when abuse or neglect may have occurred.
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66. DCYF also has duties to ensure that children in state foster care custody are safe and to provide state-supervised supports that meet the basic needs of children in its foster care custody. Such supports include placing children in screened, licensed foster homes or other appropriate placements. Foster care supports also include the development and implementation of appropriate case plans designed to ensure appropriate placement and care.
67. Additionally, under the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”), as amended by the Adoption and Safe Families Act of 1997, DCYF has a duty to provide family foster care providers with maintenance payments that cover the costs associated with (and the actual costs of) caring for children in foster care, including the costs of specific items articulated in the statute.
68. DCYF operates four regional offices responsible for case management and planning and for ensuring the delivery of necessary supports to children and families. The agency also operates a statewide Licensing Unit responsible for licensing and monitoring foster homes, adoptive homes, and group care, including relative and child-specific placements.
69. DCYF also contracts with private child-placing agencies in Rhode Island for the provision of foster care placements, including shelters, group homes, residential treatment centers, and therapeutic foster homes. DCYF remains legally responsible for every Plaintiff Child who is placed through a child-placing agency.
70. The Licensing Unit is also responsible for licensing child-placing agencies, promulgating the rules governing them and the standards that they must meet in furnishing foster care placements, and monitoring their compliance with all applicable rules and standards. The Licensing Unit is also responsible for investigating regulatory violations and enforcing childplacing agencies’ compliance with DCYF regulations and policies.
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VI. Defendants’ Knowledge Regarding Systemic Failings in Rhode Island’s Child Welfare System 71. Defendants have long known that the state foster care system suffers from
structural problems that expose children to unacceptable levels of risk. Some of these problems were identified as early as 2003, while others were identified through federal reviews in 2004 and 2010. Importantly, all of the structural problems identified in this Amended Complaint have been raised during the eight-year course of this litigation. Though repeatedly notified about these deficiencies, Defendants have failed to correct them, leaving the children in their care at continued risk of harm.
72. As far back as 2003, the state Systems of Care Task Force reported on the “disorganized and fragmented” child welfare agency with widespread systemic failings, including a lack of foster homes, poor placement matching, low reimbursement rates to foster parents, high caseloads and other significant unmet worker needs, and a public perception as “bureaucratic, unwieldy, [and] insensitive.” The Task Force concluded that all of these failings exposed children in the system to harm and trauma.
73. Because Rhode Island receives federal funding to operate its child welfare system, it is subject to periodic federal Child and Family Services Reviews (“CFSRs”). On the first-round CFSR, conducted in 2004, Rhode Island failed to meet numerous federal requirements. The state underperformed on measures related to maltreatment, foster parent licensing and training, placement stability, placement array, and preserving family relationships. The review also demonstrated that caseworkers failed to conduct required monthly visits with children. The state was required to address these deficiencies in a Program Improvement Plan (“PIP”).
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74. In 2005, a child named T.J. Wright died while in the care of unlicensed foster parents selected for him by DCYF. The death brought widespread media attention to systemic problems at DCYF, which ultimately led the state Senate to investigate and conduct hearings on agency performance. In March 2007, the Senate passed Resolution 07-R128, which mandated biennial reporting on a range of systemic issues, including caseloads, overtime hours, and overtime costs; placement array, licensing, and foster parent training; and progress made on federal CFSR measures.
75. A second-round CFSR took place in 2010. Once again, Rhode Island failed to meet numerous federal requirements. Serious issues persisted regarding protecting children from abuse and neglect, placement stability, maintaining family connections, and case planning. On many measures, most notably maltreatment in care, the state continued to perform near the very bottom of the nation. The 2010 reviewers cited the state’s need to address “systemic barriers that have a direct impact on ensuring safety and achieving permanency for children.” The state was once again required to address its underperformance in a PIP.1
76. The state has failed to remedy these performance deficiencies and remains at the bottom of the nation on key outcome measures. The state’s rate of maltreatment in foster care has only worsened, increasing from 0.97 in 2010 to 1.19 in 2014. As of 2013, Rhode Island still ranked 49th on the national indicator of all children placed in congregate care.
77. In 2012, DCYF outsourced many placement and service responsibilities to two network contractors. In November 2014, Child Advocate Regina Costa reported to the Senate Task Force that children and families had rising needs and fewer options under the
1 Due to changes in the calculations of systemic factors and outcome measures, a state’s performance on the 2010 CFSR is not directly comparable to its performance on the 2004 CFSR; similarly, a state’s performance on the expected third-round CFSR will not be directly comparable to either of the two previous reviews. Rhode Island is scheduled to receive its third-round CFSR in 2018.
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network contracts. Between 2012 and 2014, both the number of out-of-state placements and use of the highest-level, highest-cost treatment options for children roughly doubled. In January 2015, the Senate Task Force formally concluded that the networks had consumed millions of taxpayer dollars without yielding performance returns. To remedy on-going, urgent problems in the child welfare system, the Task Force recommended reducing caseworker caseloads and turnover, reducing reliance on residential placements, increasing foster parent recruitment and reimbursement, and timely assessing the service needs of all children in care, among other things. The Task Force did not examine or make recommendations related to other key safety issues for children in care, including the rate of maltreatment, licensing, or investigations.
78. Six months later, Jamia R. McDonald, appointed by the Governor to oversee DCYF, reported no progress on implementing the caseloads, residential placements, recruitment, reimbursement, or needs assessments recommendations. She testified: “It is unacceptable that an agency charged with caring for Rhode Island’s children has so many significant challenges.”
79. As detailed below, Rhode Island’s child welfare system continues to suffer from known and serious structural problems: overwhelming caseloads, leading to inadequate casework, deficient licensing and investigation practice; abuse and neglect of children in care; a lack of adequate placement options; failure to maintain children’s family connections; failure to create timely and complete case plans; and inadequate reimbursement rates for foster parents. VII. Systemic Child Welfare Failings and the Resulting Harms to Children
A. Common Systemic Ailments Place Children in Foster Care at Serious Risk of Harm 1. Excessive Caseloads Overburden Caseworkers, Making It Impossible for Them to Ensure Child Safety
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80. No child welfare system can perform its basic functions without an adequately staffed workforce. When caseworkers are overburdened by unmanageable caseloads, as in Rhode Island, a child welfare system predictably breaks down and children suffer harm and an unreasonable risk of harm as a result.
81. The state has openly acknowledged for years that unmanageable caseloads plague the child welfare system. In 2005, the panel convened to identify systemic factors contributing to the death of T.J. Wright concluded that social worker caseloads were “untenable,” leaving the workers “unable to visit the very children they pledge to protect.”
82. Defendants also acknowledged the impact that unmanageable workloads have on caseworker performance in both rounds of the CFSR process. In its first-round CFSR Statewide Assessment, in 2003, DCYF admitted that “[t]he current level of vacancies across all line staff positions is the most severe that the Department has experienced for many years. As we seek to comply with [applicable] performance measures to achieve conformity, we will be hard pressed to change existing practices and/or implement new practice with an already overburdened staff.” In its second-round CFSR Statewide Assessment, seven years later, DCYF again indicated that caseworker workloads obstruct agency performance, hindering caseworkers from providing services and completing service plans in a timely manner.
83. Recent reviews of DCYF performance have similarly found that caseworkers continue to carry unreasonably large caseloads. In an October 14, 2014 presentation to the Senate Task Force on DCYF, the Annie E. Casey Foundation concluded that “[s]taff caseloads are unacceptably high, primarily because of high vacancy rates,” and “[w]hen this happens, staff focus on the front end of the system, not children already in placement” resulting in bad outcomes. The following month, Rhode Island Child Advocate Regina Costa testified to
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the Task Force that “DCYF Family Service Staff has seen an increase of nearly 200 families on their caseloads.” She explained that “[h]igh caseloads for the [DCYF] workers and supervisors create excessive and oftentimes unattainable demands on the staff.” The Governor’s Resource Team likewise found that “[c]aseloads are incredibly high for DCYF staff causing low morale and turnover.” The Senate Task Force agreed with these findings in its 2015 report, noting that DCYF caseloads were far higher than national best practices.
84. DCYF’s own staff report that their workloads are unmanageable. In 2012, the President of the Rhode Island Alliance of Social Service Employees warned that staffing shortages endangered the safety of children and families: “They’ve burned the staff out to the point that people are saying I physically can’t do it anymore.” In a May 2014 report, the Annie E. Casey Foundation found that only 38 percent of casework supervisors rated their units as adequately staffed, and 88 percent rated their units as “under a lot of stress.” Further, 66 percent of caseworkers reported that their caseloads were unmanageable and 90 percent believed that “staff turnover negatively effects [sic] outcomes for children and families.” As one caseworker put it, in August 2015, “the caseload is not manageable. It’s crisis intervention and doing the best you can, but really, the quality casework we should be doing to effectively work with the families you can’t accommodate on a daily basis because it’s just too demanding and overwhelming.”
85. Professional standards in the field of child welfare recognize that agencies should undertake a workload analysis to determine appropriate caseload standards for their caseworkers. This assessment is critical to ensuring that caseworkers are able to complete tasks upon which children’s safety and well-being depend, including adequate caseworker visitation.
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Despite years of warning regarding unmanageable caseloads, DCYF has not undertaken such a workload study.
86. Further, because of the vital role that caseworkers play, well-accepted professional standards prescribe caseload maximums. Standards published by the Council on Accreditation (“COA”), for example, state that “[n]ationally recognized caseload guidelines recommend no more than 15 children [per caseworker] in foster care or kinship care, and no more than 8 children in treatment foster care.”2 The Rhode Island Legislature, in R.I. General Law § 42-72-5.3, has recognized that COA publishes nationally recognized standards for child welfare and has instructed DCYF to seek COA accreditation.
87. Departing from professional standards, DCYF does not place any limit on the number of children that can be assigned to a caseworker. As reported in its June 2013 Annual Progress and Services Report, though DCYF “strives to maintain a caseload of 14 families,” each of which may have more than one child, “there is no required caseload limit.” Assistant Director Stephanie Fogli-Terry testified in July 2012 that there was no caseload size that would trigger the agency to take steps to ensure that a caseworker’s caseload was manageable.
88. Unsurprisingly, DCYF caseworkers consistently carry caseloads that far exceed professional standards. Each month between January 2012 and January 2013, for example, approximately 23.2 percent to 35.5 percent of DCYF’s caseworkers were assigned a caseload of at least 25 children — that is, a caseload that was at least 50 percent higher than the maximums prescribed by today’s nationally accepted standards. The burden placed on DCYF’s
2 In 2014, COA reduced its caseload maximum standard from 18 children per worker to 15 children per worker. The Child Welfare League of America similarly prescribes a caseload maximum of 12 to 15 children for foster care workers.
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caseworkers has only worsened since then. In June, July, and August 2015, between 95 percent and 96 percent of caseworkers carried a caseload that exceeded the maximum provided by professional standards and between 55 percent and 61 percent carried a caseload of at least 25 children.
89. Unmanageable caseloads lead to a high rate of turnover among foster care caseworkers. The resulting vacancies then leave the remaining workers with even more burdensome caseloads. Turnover among DCYF staff has reached dangerously high levels. Unable to retain enough caseworkers, the agency is woefully understaffed. The Annie E. Casey Foundation found, in May 2014, that DCYF’s high vacancy rate interfered with its ability to undertake case management activities and, it warned, “[n]o child welfare system can function well with this vacancy rate.”
2. Caseworkers’ Caseloads Leave Them Unable to Make Timely and Adequate Visits 90. Regular caseworker visits are necessary for checking on a child’s safety
and well-being, identifying the child’s needs, and arranging and monitoring the delivery of services to meet those needs. Indeed, the federal government has determined, based on its reviews of the child welfare systems of each state, that there are significant associations between caseworker-child visitation and the safety of children in foster care. Federal law recognizes the importance of regular caseworker visits, requiring monthly caseworker visits with children in foster care. DCYF policy also requires the caseworkers to meet “face-to-face . . . at least once per month” with the Plaintiff Children on their caseloads and with those children’s caregivers, and to visit foster homes at least monthly.
91. DCYF has acknowledged that high caseloads are a barrier to its ability to provide sufficient child-caseworker visitation, stating in its 2010 Statewide Assessment that
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“[h]igher caseloads make it difficult to meet all of the time frames” for face-to-face visits. 92. Indeed, for years DCYF has fallen short of meeting visitation requirements
for a large percentage of children in its care. Caseworker visits with children were determined to be an area needing improvement in both the 2004 and 2010 federal reviews. The 2010 CFSR found that the frequency and quality of visits between caseworkers and children were sufficient to ensure adequate monitoring of the child’s well-being and promote attainment of case goals in only 77.5 percent of the foster care cases reviewed.
93. Recent data show that DCYF continues to fail to provide adequate caseworker visitation to children in foster care. In FFY 2013, DCYF made only 81 percent of required monthly visits to children in DCYF custody, a substantial departure from the federal requirement of 90 percent (to become 95 percent in FFY 2015) and the ninth lowest performance in the country.
94. State data confirm that each month hundreds of children in DCYF care go unseen by DCYF. In March 2012, for example, almost a third of children in out-of-home care (771 out of a total of 2,612) did not have a documented face-to-face contact. In addition, hundreds of children go unseen for periods of more than a month. State data reflect that for the period from October 2011 through July 2012, one or two monthly visits were missed for over 600 children, three to five visits were missed for over 200 children, and six or more visits were missed for more than 50 children.
95. Even when visits with children in foster care occur, they are often conducted not by family services caseworkers but instead by child support technicians (“CSTs”). Tellingly, DCYF revised its policy in 2009 to permit contact between CSTs and children to meet the monthly visitation requirement for children in foster care. However, visits with CSTs —
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who do not have the same education, expertise, or training as caseworkers — are not an adequate substitute for regular visits with a child’s family services caseworker.
96. With such low face-to-face visitation rates, DCYF is unable to ensure that the children in its foster care custody are safe and that their basic needs are being met. As the persistently high rates of abuse in care show, children in foster care in Rhode Island are not safe. The harmful and dangerous situation in which children in foster care find themselves is a direct result of DCYF’s failure to ensure that caseworkers regularly visit them.
3. DCYF Operates an Inadequate Licensing Unit, Resulting in a Chronic Shortage of Safe and Licensed Placements 97. DCYF has established a Licensing Unit charged with (1) processing
applications submitted by prospective foster parents and foster care providers seeking licensure to furnish foster care services in Rhode Island, (2) ensuring that DCYF-licensed family foster homes, group homes, and institutions where children are placed for foster care services comply with minimum state safety requirements, and (3) responding to reports of licensure or regulatory violations involving DCYF-authorized family foster homes, group homes, or institutions.
98. A properly administered licensing process would enable DCYF to timely process applications and to screen out potentially unsafe or unsuitable foster care providers. Chronic understaffing of the Licensing Unit, however, results in delayed processing of applications, inadequate oversight and enforcement of licensing regulations, and the regular use of unlicensed placements — practices that suppress the number of available foster homes and place children’s safety at ongoing risk.
99. Professional standards require that agency regulatory units maintain structures for the development and implementation of “a staffing plan that takes into account effective workloads and supervisory/managerial span of control” as well as the use of a “formal
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continuous quality improvement system” with “clear performance benchmarks” and systematic monitoring. On information and belief, DCYF’s Licensing Unit fails to comply with these standards.
100. DCYF has never conducted a workload study to determine how many cases each licensing worker can reasonably handle. As a result, these workers historically have been grossly overburdened, leading to a backlog of more than 500 unprocessed applications and a pattern of inadequate inspections. Although state regulations require that licenses must be issued or denied within 90 days of completion of the licensing process, DCYF does not actually track the timeliness of licensing decisions on an aggregate basis, and historically foster families have waited many months for approval. In the face of this chronic backlog, the state resorted and continues to resort to unlicensed placements to meet demand, though such placements violate policy and expose children to serious safety risks. On information and belief, the licensing unit remains seriously understaffed.
101. Rhode Island statute provides that no non-kin foster care provider may furnish care for a child without holding a valid, current license. To secure a license in Rhode Island, the foster care provider must satisfy a set of mandatory eligibility requirements that include undergoing a criminal background check, a home safety study, training and orientation as a caretaker, and a medical clearance. Yet, DCYF routinely places children in unlicensed nonkin placements. On April 1, 2012, 159 children — over 13 percent of children in care at the time — were in such placements. Seventy-three of those children were placed in 58 unlicensed nonkin homes, while the other 86 children were placed in unlicensed group home, shelter, and private agency placements. Nineteen of the 58 homes had expired licenses, while it appears the other 39 had no recent license.
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102. Relatives who seek to be caregivers of children in DCYF custody must be certified, which involves meeting essentially the same standards as required to be a licensed foster parent. Yet children in DCYF custody are routinely placed in the care of relatives while certification is still pending or after the license has expired. As of April 2012, 200 children were placed in unlicensed relative homes. Twenty-eight of those children were placed in homes whose licenses had expired — the majority more than a year prior, and some as far back as the year 2000.
103. The Licensing Unit is also charged with the licensure of the child-placing agencies with which DCYF contracts for the provision of foster care services and placements such as independent living arrangements, supervised apartment living, residential group care facilities, family foster homes, and adoptive homes. Historically, however, DCYF has not enforced licensing requirements for child-placing agencies and has allowed almost one-third of such agencies to operate without an active license.
104. All licensed facilities are required to undergo an annual inspection and a biannual relicensing process. Additionally, DCYF’s standard practice requires program monitors to visit residential-care facilities once every three months. Yet, DCYF fails to ensure that inspections and re-licensing activities are timely and adequate to protect the safety of children in care. Such oversight and monitoring is all the more imperative given that certain safety standards are more relaxed at re-licensing than at initial licensing. For example, DCYF does not require new nationwide criminal background checks for all adults in a foster home during relicensing.
105. DCYF also takes a reactive approach to licensing and safety, often addressing issues only after they have surfaced in the media. For example, in 2010, DCYF
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decreased the number of program monitors from six to three — a 50 percent workforce reduction. That same year, DCYF was forced to close a group facility that had not been inspected by a monitor for over one year after the press revealed excessive punishment and other extensive licensing violations at the facility.
106. More recently, in July 2012, investigators temporarily closed a group home in Middletown due to conditions “not suitable for the children.” In the wake of significant media attention to this event, then-Director Janice DeFrances ordered an “inspection blitz” of all 76 residential facilities in the state, including 42 group homes providing care to over 400 children in DCYF custody. These inspections uncovered myriad violations “ranging from littered lawns to broken windows and ‘time-out’ rooms with no furnishings and bare walls.” In the opinion of the state’s Child Advocate, these “physical inspections only scratched the surface of the problems” in group care facilities for children in care.
107. DCYF also does not take steps to regularly review and update its licensing policies in order to ensure children’s safety. In February 2013, a residential care worker died from a heart attack while restraining a teenager who was in DCYF custody. It was later revealed that the worker abused cocaine, and that the Department had no mandatory drug or alcohol screening requirements for residential workers. Rather than revise its requirements, DCYF suspended the facility’s license, and the operation soon shut down.
4. CPS Investigators Are Overburdened and Thus Unable to Adequately Investigate Abuse and Neglect in Care 108. In addition to the Licensing Unit, DCYF maintains a Child Protective
Services (“CPS”) Division that is responsible for the intake, screening and investigation of allegations of child abuse and neglect, including reports of alleged abuse and neglect involving children already removed into DCYF foster care custody. The CPS Division historically has
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employed a general staff of investigators, deployed regionally around the state, who investigate allegations of abuse and neglect occurring to children in non-foster care settings. Additionally, the CPS Division historically has employed two “Institutional Investigators” who are specially tasked with investigating allegations of abuse and neglect occurring to children in foster care placements, including congregate care facilities. Notwithstanding this specialized staff, it has been routine practice within the CPS Division to assign investigations of abuse and neglect involving children in DCYF foster care custody to the general staff of investigators whenever the two Institutional Investigators are unavailable.
109. It is well recognized within the child welfare field that CPS investigators who are overloaded with unmanageable caseloads will not be able to effectively conduct and complete investigations. In order to assure manageable investigative caseloads, it is incumbent upon DCYF to undertake an assessment of the time required to perform the CPS investigator function and tasks, as delineated in agency policy, and to establish workload standards based upon such a time assessment. DCYF’s fundamental obligation to provide an adequate workforce is reflected in widely-accepted professional standards. Standards published by the Child Welfare League of America (“CWLA”) provide:
Workload standards [for child protective services staff] should be established that make it possible for staff members to complete required tasks and activities. Once workload standards are established, the agency should advocate aggressively for the resources needed to meet those standards…Every agency should conduct a workload analysis to determine the appropriate workload standards for its child protective services staff. Standards published by COA provide that the public agency should annually conduct an assessment of workforce needs and composition. In the absence of a system-specific workload analysis, professional standards supply well-accepted guidance on what constitutes a manageable CPS caseload. CWLA standards require that CPS investigators carry no more than 12 active
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investigations per month. COA standards also require that CPS investigator caseloads not exceed 12 active investigations.
110. Within a reasonable period of time in the past, DCYF has not conducted a workload analysis to determine the appropriate workload standard for investigators within the CPS Division operating under current agency policy and practice. Likewise, DCYF policy does not establish any such workload standard.
111. In the absence of established and consistently enforced workload standards within DCYF, investigators in the CPS Division have carried caseloads far exceeding the CWLA and COA standards calling for no greater than 12 active investigations per worker. For example, DCYF monthly data for the six-month period from February 2012 through August 2012 indicate that the vast majority of CPS Division investigators carried monthly caseloads exceeding the CWLA and COA standards. During this same period, the majority of CPS Division caseworkers were responsible for 30 or more investigations each month, over twice today’s CWLA and COA workload standard of 12.
112. The high caseloads carried by CPS Division investigators are patently unmanageable and prevent them from consistently conducting timely and quality investigations, a vital element of any child welfare agency’s safety net. Indeed, DCYF monthly data for the period January 2010 through April 2012 reveal that scores of CPS Division investigations were not completed within prescribed time limits. During this time period, anywhere from 94 to 202 investigations each month exceeded the maximum time allowed under DCYF policy for completion of an investigation.
113. Likewise, DCYF monthly data for January 2013 reveal that 419 CPS Division investigations were past due as of that time and that 52 of these overdue investigations
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were on the caseloads of the two Institutional Investigators alone. The high caseloads within the CPS Division and the consequent untimely and inadequate CPS investigations place children in DCYF custody at an unreasonable and ongoing risk of harm.
5. As a Result of These Systemic Failings, Plaintiff Children Are Abused and Neglected in Foster Care 114. Inadequate caseworker monitoring and visitation, licensing oversight, and
investigative practice create egregious safety risks for all children in DCYF foster care. There is no clearer example of this harm than the abuse or neglect of children while in foster care.
115. Children in DCYF foster care custody suffer abuse and neglect with startling frequency. In the eight years since Plaintiffs initiated this lawsuit, an average of three children a month in DCYF’s care have been maltreated while in state care. In only six years, between 2006 and 2012, children in DCYF care were subject to 482 confirmed allegations of abuse or neglect. In FFY 2013 alone, the state reported 71 incidents of maltreatment of children in DCYF foster care.
116. The rate at which children in the foster care custody of DCYF are abused or neglected routinely exceeds, by many multiples, the standard set by the federal government. In FFY 2013, 1.13 percent of children in Rhode Island foster care suffered abuse or neglect at least once that year, three and a half times the federal standard (of 0.32 percent) and the second highest rate of any state or territory in the country. According to preliminary data compiled by Yale University School of Medicine, and relied upon by DCYF, that rate rose in FFY 2014 to 1.19 percent of children in DCYF custody, over three and a half times the federal benchmark.
117. This high rate of abuse and neglect is longstanding. In the 13 years since the federal government began tracking maltreatment in foster care across states for the Child and Family Services Reviews, Rhode Island has never come close to meeting the accepted
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benchmark. Each year since FFY 2004, for example, children in Rhode Island foster care have been maltreated at a rate between two and over four times the federal standard. In recent years, from FFY 2010 to FFY 2012, Rhode Island reported rates of abuse or neglect for children in foster care at between three and nearly four times the federal benchmark, the third highest rate in the country each year. Despite knowing that its maltreatment in care rate is among the worst in the nation, upon information and belief, in recent years Rhode Island has not directly prioritized safety in care as an area for reform.
B. Defendants Place Plaintiff Children in Inappropriate Homes and Institutions, Resulting in Serious Risk of Harm 1. Defendants Have Failed to Develop and Maintain a Sufficient Array of Foster Care Placements 118. As DCYF has acknowledged, for years it has failed to develop and
maintain an array of foster care placements that meet the needs of the children in its care. As a result, Plaintiff Children are placed in inappropriate foster homes, are unnecessarily placed in shelters and institutions instead of family foster placements, and are separated from their siblings.
119. In the Statewide Assessment that DCYF submitted in 2003 as part of its federal review, the agency admitted that it was “not able to assure that children are placed in the types of placements that are the most family like and most appropriate for their individual needs, both at the time of initial entry and throughout their stay, because of a serious lack of foster family homes, resulting in demand for and use of all other types of placements. One of Rhode Island’s critical needs is for a sufficient number and type of foster homes so that the first placement in foster care is an appropriate match. We all too often place a child in a less than
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ideal placement at the time of entry, which later increases the likelihood that a subsequent placement will need to be made.”
120. Over a decade later, this “serious lack of foster family homes” for foster children in Rhode Island continues unabated. In a 2013 hearing of the Rhode Island House Committee on Finance, DCYF’s then-commissioner admitted that the agency “desperately” needed more family-based foster placements and that “access into more community based services or support” for children who should be stepped down from institutional placements was “not readily available.” Rhode Island’s Child Advocate, Regina Costa, stated in testimony the following year that Rhode Island is “experiencing a crisis in the foster care system, with extremely limited resources available for the placement of youth.” And this crisis is worsening. Between June 30, 2012, and June 30, 2015, the number of licensed DCYF and private agency non-relative foster homes decreased by approximately 31 percent.
121. The Rhode Island Senate Task Force on the Department of Children, Youth and Families and the Family Care Networks found in its January 2015 report that “some Rhode Island children are placed in more costly settings simply because of a lack of a robust foster care system in the state.” Indeed, Rhode Island’s Child Advocate has reported that the number of DCYF children placed out of state almost doubled from July 2012 to July 2014. As the Child Advocate acknowledges, this practice is expensive for the state: the cost for just fourteen of these children who are placed in a single facility in Massachusetts is $2,315,195 per year. Furthermore, removal from home and placement in foster care is inherently traumatic for children, and living in one’s home community minimizes that trauma by helping children maintain ties with parents and siblings and by avoiding unnecessary separation from friends, school, and local supports.
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122. DCYF’s chronic shortage of a sufficient number and variety of placements is due, in part, to its failure to recruit, license, train, and support prospective foster parents. Further, under DCYF’s current system, potential foster parents may have to wait for an excessively long time to be licensed by DCYF. As acknowledged by the Rhode Island Senate Task Force on the Department of Children, Youth and Families and the Family Care Networks, the inadequate payments DCYF makes to foster parents to provide for children’s room and board are another contributing factor. DCYF also has trouble retaining foster parents, in part because foster parents can feel ill-treated by the agency. Moreover, because DCYF does not collect or analyze aggregate data on its efforts to recruit foster homes, it is difficult to evaluate the efficacy of any such efforts.
123. Because DCYF does not have enough suitable foster care placements, it typically places Plaintiff Children in the next available bed, regardless of whether that placement meets children’s needs and regardless of whether they will receive adequate care and supervision. The lack of sufficient foster care placements also leads to harmful placement moves when children are put in homes that do not meet their needs.
124. In addition, because of the inadequate array of placements available for children who enter foster care, DCYF has resorted to short-term, overnight placements. As the Child Advocate has disclosed in legislative testimony, “young children who have never been in DCYF care before have been forced to stay overnight at the DCYF offices” because of “limited foster placements and resources.”
2. As a Result of the Inadequate Array, Plaintiff Children Languish in Congregate Care 125. Under federal law and reasonable professional standards, children taken
into foster care custody must be placed in the least restrictive and most family-like environment
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possible, taking into account the child’s particular needs. Most children need to live with families and not in institutions. Absent circumstances where children require specialized care, institutions do not meet children’s developmental and emotional needs and can cause them trauma.
126. Nevertheless, DCYF places an extraordinary number of Plaintiff Children in group homes, emergency shelters, and other institutions, even when such placements are not warranted by children’s individual needs. In FFY 2013, the last period for which federal data are available, Rhode Island placed 29 percent of children in its foster care custody in group or institutional settings — more than twice the national average of 13 percent and the third highest percentage in the country. During the same period, DCYF placed 34 percent of the children newly removed from their homes in group or institutional settings — more than twice the national average of 14 percent and the highest percentage in the country.
127. Because DCYF typically places children in the next available bed, many children in state foster care custody end up spending time in emergency shelters. DCYF’s reliance on shelter placements results in multiple short-term placements, even for young children who suffer the most from this instability. As of December 31, 2014, there were 40 children in out-of-home care who were placed in shelters, including four who were ages one to five and five children ages six to 13. As of June 30, 2015, 42 children in out-of-home care were living in shelters. For example, Named Plaintiff Cassie’s sister spent over nine months in two shelters when she was six years old. Shelters are rarely, if ever, appropriate placements for children. They are not safe, nurturing, or healthy environments. Furthermore, it is far more expensive to maintain children in shelters than to maintain them with foster families.
128. Institutions are particularly damaging to infants and young children,
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causing a variety of harms, including: delayed language development; poor mental development and adaptive skills; an increased risk of serious infectious illness; less stability; lower rates of adoption; and a greater likelihood of remaining in care.
129. Yet DCYF routinely places large numbers of infants and young children in institutions. As the Rhode Island Child Advocate has recognized, “[a]ll children need families, but young children in group care or shelters is a particularly time sensitive issue.” In FFY 2013, DCYF placed 8 percent of children who entered care during the fiscal year and were 12 or younger at the time of their current placement into group or institutional settings, substantially above the national average and the eighth highest percentage in the country.
130. DCYF places an even higher percentage of adolescents in institutional settings, despite the fact that living in a family setting is important for adolescents, who learn independence by looking to parents as authorities on maintaining relationships, developing selfreliance skills, following rules and evaluating and avoiding risks. In FFY 2013, DCYF placed 57 percent of children in its custody who were over age 12 in group or institutional settings, more than one and a half times the national average of 33 percent and the fourth highest percentage in the country.
131. Not only do institutional placements harm children who do not need them, they are not cost effective. Most children are best cared for in standard foster homes, but those children whose special needs preclude placement in regular foster homes can often have their needs met in a family-like setting by therapeutic foster care providers for a fraction of the cost of institutional care. The cost for generic foster care is between approximately $14 and $16 per day and the cost of treatment foster care in a family home in Rhode Island is on average approximately $100 per day. In comparison, a group home placement starts at over $100 and
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ranges up to over $300 per day, and therapeutic group home rates go as high as $400 to $600 per day.
132. Defendants’ unnecessary reliance on institutional placements translates directly into fewer dollars available for ensuring that children in foster care are safe and that their needs are being met in the least restrictive, most family-like setting that is appropriate to their needs.
3. As a Result of the Inadequate Array, Plaintiff Children Are Separated from Their Siblings 133. Both reasonable professional standards and DCYF policy emphasize the
importance of keeping siblings together when they are taken into foster care, unless one or more of the children has a serious need that justifies separation. Separating siblings should be the exception, not the rule.
134. However, in both the 2004 and 2010 federal reviews, placement with siblings was rated as an area needing improvement, and in both reviews Rhode Island failed to meet the federal performance standard related to preserving continuity of family relationships and connections. The 2010 Statewide Assessment reported that among the factors frequently associated with placing siblings separately was that “[p]lacement resources to accommodate the siblings group are not available.” Named Plaintiffs Cassie, Andrew, Matthew, Erin, and Sean have all been separated from their siblings.
135. According to 2014 testimony of Rhode Island’s Child Advocate, the “limited resources in the foster care system have resulted in,” among other things, “[s]eparation of siblings who come into care.”
136. DCYF’s practice of separating siblings who do not need to be separated results in needless harm to children. Sibling relationships are often the main source of stability
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in the life of a child in foster care and can be essential to minimizing the lasting ill effects of a child’s time in state custody.
137. Defendants compound the harm of sibling separation by failing to ensure that siblings who are not placed together at least have regular and frequent visits with one another. The 2010 CFSR case reviews found that children in foster care visited with their siblings at least once per month in only 60 percent of the applicable cases. This is in line with DCYF’s general practice of failing to maintain family connections for children in care. The 2010 CFSR also rated visits with parents and siblings in foster care to be an area needing improvement. That same year, DCYF admitted in its Statewide Assessment that high worker caseloads are a barrier to ensuring visits for children in foster care with their siblings and with their parents.
C. Defendants Do Not Provide Plaintiff Children with Required Timely and Appropriate Case Plans
138. When DCYF takes a child into foster care custody, it is required by federal law and DCYF policy to, in a timely manner and in consultation with the child’s parents and other knowledgeable individuals, prepare and periodically update a written case plan that identifies the child’s needs and permanency goal and that specifies the services that will be provided in order to meet those needs and achieve that goal. Case plans are vital to providing for a child’s safety, permanency and well-being while in foster care and provide a blueprint for the steps that must be taken and the services that must be provided for that child.
139. Nevertheless, DCYF does not have a system in place to assure the timely preparation of appropriate case plans. Federal reviews in 2004 and again in 2010 found that DCYF failed to be in substantial conformity with the requirement that each child have a written case plan to be developed jointly with the child’s parents that includes the required provisions.
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140. Since 2010, DCYF has continued to fail to provide timely and complete case plans to children in foster care. For the period from February 1, 2015 to April 30, 2015, for example, only 43.94 percent of case plans reviewed by the agency in Region 1 (the most populous of the regions), 28.81 percent in Region 2, 65.38 percent in Region 3, and 47.29 percent in Region 4 were written in a timely manner and included measurable behavioral change outcomes.
141. Even when case plans are timely prepared or updated, key players are often excluded from the planning process. For example, the 2010 CFSR found that DCYF fails to adequately involve children (where appropriate) and parents in the case planning process.
142. DCYF acknowledged in its 2010 Statewide Assessment that workloads are a barrier to completing assessments and service plans in a timely and family-centered manner.
D. Defendants Do Not Provide Adequate Foster Care Maintenance Payments to Foster Parents 143. To comply with federal law and widely-recognized professional standards,
DCYF must pay maintenance payments to family foster care providers that cover the costs associated with caring for children in foster care, including “payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, [and] reasonable travel to the child’s home for visitation…” By these standards, the maintenance payments that Defendants pay foster parents are inadequate.
144. DCYF’s website provides that the standard daily board rates paid to foster parents by DCYF are $14.39 for children up to three years of age, $13.64 for children between four and 11 years old, and $15.79 for children ages 12 and older.
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145. These rates were initially set in 2001 and were not raised in the subsequent 14 years, even to account for inflation.
146. The United States Department of Agriculture estimates that in 2013, the average middle-income, two-parent family in the urban Northeast spent approximately $38.38 per day for a two-year-old, $39.92 per day for a nine-year-old, and $45.32 per day for a 16-yearold (not including health care costs). Even after taking into account adjustments to these amounts based on subsidies and other payments paid to foster parents by DCYF and costs included in the USDA estimates that do not fall within AACWA-covered costs, Rhode Island’s standard board rates fall significantly below the USDA estimates.
147. Indeed, the Rhode Island Senate Task Force on the Department of Children, Youth, and Families and the Family Networks assessed the Rhode Island foster care maintenance payment rates in its January 2015 report and concluded that the rates are inadequate and need to be raised. The Task Force found that Rhode Island “has a low reimbursement rate for foster parents, with an average daily reimbursement rate of $14.39 trailing the rates seen in Connecticut ($26.93 per day) and Massachusetts ($22.99 per day).” The Task Force recommended that DCYF raise the reimbursement rate for foster parents to within ten percent of the Massachusetts and Connecticut average daily rates.
148. Upon information and belief, to date, DCYF has failed to implement the recommendation of the Task Force.
149. This disparity translates into harm and risk of harm to Plaintiff Children, since financially overburdened foster parents are less able to provide proper care. It also drives away potential foster parents, thus placing a greater burden on the limited array of foster family
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homes and contributing to the high rate of needless and harmful institutionalization of children in

foster care.

150. Not only does DCYF fail to provide foster care maintenance payments to

foster parents that cover the cost of statutorily-mandated items, it also fails to employ a

methodology for calculating these payments that takes into consideration the actual cost of

providing the items. In addition, DCYF fails to periodically review foster care maintenance

payments to assure their continuing appropriateness, as required by federal statute.

VIII. Causes of Action

First Cause of Action

(Substantive Due Process Under the United States Constitution) (Asserted by All Named Plaintiffs and Plaintiff Children)

151. Each and every allegation of the Complaint is incorporated herein as if

fully set forth.

152. A state assumes an affirmative duty under the Fourteenth Amendment to

the United States Constitution to protect a child from harm when it takes that child into its foster

care custody.

153. The foregoing actions and inactions of Defendants, in their official

capacities, constitute a failure to meet the affirmative duty to protect from harm all Named

Plaintiffs and Class members, which is a substantial factor leading to, and proximate cause of,

the violation of the constitutionally protected liberty and privacy interests of all Named Plaintiffs

and Class members.

154. The forgoing actions and inactions of Defendants, in their official

capacities, constitute a policy, pattern, practice, or custom that substantially departs from

accepted professional judgment, practice, or standards and amounts to deliberate indifference to

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the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and Class members. As a result, all Named Plaintiffs and Class members have been and are at continuing and unreasonable risk of being harmed and deprived of the substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
155. These substantive due process rights include, but are not limited to: the right to protection from harm while in government custody; the right to a living environment that protects Plaintiff Children’s physical, mental, and emotional safety and well-being; the right to services necessary to prevent Plaintiff Children from deteriorating or being harmed physically, psychologically, or otherwise while in government custody, including but not limited to the right to safe and secure foster care placements, appropriate monitoring and supervision; the right to treatment and care consistent with the purpose of the assumption of custody by the Department of Children, Youth and Families; the right to receive care, treatment, and services, determined and provided through the exercise of accepted, reasonable professional judgment; and the right to be placed in the least restrictive placement according to a Plaintiff Child’s needs.
Second Cause of Action (First, Ninth, and Fourteenth Amendments to the United States Constitution)
(Asserted by All Named Plaintiffs and Plaintiff Children) 156. Each and every allegation of the Complaint is incorporated as if fully set forth herein. 157. The foregoing actions and inactions of the Defendants, in their official capacities, amount to a policy, pattern, practice, or custom that substantially departs from accepted professional judgment, practice, or standards and to deliberate indifference to Plaintiffs’ constitutional rights, and are the cause of the violation of such rights. As a result of Defendants’ conduct, all Named Plaintiffs and Class members have been and are being severely harmed and
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deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a child-parent or a child-sibling family relationship, guaranteed by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
Third Cause of Action (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq.)
(Asserted by All Named Plaintiffs and Plaintiff Children) 158. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 159. As a result of the foregoing actions and omissions by Defendants, in their official capacities, Defendants are engaging in a policy, pattern, practice, or custom of depriving all Named Plaintiffs and Class members of rights conferred on them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 670 et seq. (collectively the “Adoption Assistance Act”), and the regulations promulgated thereunder, 45 C.F.R. §§ 1355–57. These rights include: the right to timely written case plans containing mandated elements and the right of each Plaintiff Child to foster care maintenance payments paid to the foster parents or foster care providers with whom the child is placed that cover the actual cost of (and the cost of providing) the Plaintiff Child’s food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family, and other expenses. 42 U.S.C. §§ 671(a)(1), 671(a)(11), 671(a)(16), 672(a)(1), 675(4)(A); 45 C.F.R. §§ 1355.20, 1356.21(f)-(g), 1356.21(m)(1). IX. Prayer for Relief WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court: a. Assert jurisdiction over this action;
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b. Order that Plaintiff Children may maintain this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure;
c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of Civil Procedure Defendants’ violation of Plaintiff Children’s substantive right to be free from harm under the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution; and Defendants’ violation of Plaintiff Children’s statutory rights under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq.;
d. Enter a permanent injunction as to all children in the Class requiring Defendants to:
1. Ensure that an assessment by qualified professionals be conducted to determine (i) the time required for FSU caseworkers and CPS investigators to adequately perform their tasks as defined in applicable law and policy and (ii) a manageable caseload for FSU caseworkers and CPS investigators taking into account the measure of time required to adequately perform tasks; and further to ensure that DCYF implements the findings of the workload study within a defined time period;
2. Ensure that an assessment by qualified professionals be conducted to determine (i) the resources and processes necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to Defendants’ foster care placements and to conduct timely and qualitatively adequate investigations of alleged licensing violations; (ii) the time period during which these resources and processes will be developed and implemented; and (iii) the steps necessary to develop and implement these resources and processes; and further to ensure that DCYF implements the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment;
3. Ensure that an assessment by qualified professionals be conducted to determine (i) the aggregate need of all children in the Class for an array of placements that will provide the necessary number, geographic distribution, and types of placement options for all children in the Class in order to
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facilitate placement matching in the least restrictive, most family-like placement setting appropriate to meet the child’s needs and to avoid the unnecessary placement of children in out-of-state and congregate care settings and the unnecessary separation of sibling groups, (ii) the time period during which this array of placements will be developed, and (iii) the steps necessary to implement these placement options; and further to ensure that DCYF implements the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment;
4. Ensure that DCYF shall develop and implement policies providing for adequate visitation between parents and children of those parents removed into foster care and siblings one or more of whom has been removed into foster care;
5. Ensure that DCYF shall take necessary action to provide adequate and timely case plans for children and adequate and timely services plans for their parents as required under 42 U.S.C §§ 671(a)(1), 671(A)(11), 671(A)(16) and 672(a)(1); and
6. Ensure that DCYF shall determine and pay foster care reimbursement rates that fully meet the elements set forth in 42 U.S.C § 675(4)(A).
e. Appoint a Neutral Monitor to oversee the implementation of this order and to issue periodic reports to the Court;
f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
g. Grant such other and further equitable relief as the Court deems just, necessary, and proper to protect Plaintiff Children from further harm by Defendants.
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DATED: October 22, 2015

Respectfully Submitted:
/s/ Sara Michelle Bartosz SARA MICHELLE BARTOSZ (Bar No. 6194058 (IL);
admitted pro hac vice) RACHEL BRODIN NILI (Bar No. 666227 (MA);
admitted pro hac vice) JOSHUA M. ROSENTHAL (Bar No. 469382 (NY);
admitted pro hac vice) ADRIANA T. LUCIANO (Bar No. 4813697 (NY);
admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: sbartosz@childrensrights.org rnili@childrensrights.org jrosenthal@childrensrights.org aluciano@childrensrights.org
/s/John W. Dineen_______ JOHN W. DINEEN (Bar No. 2346) 305 South Main Street Providence, RI 02903 Phone: (401) 223-2397 Facsimile: (401) 223-2399 Email: jwdineen1@yahoo.com
JARED BOBROW (Bar No. 133712 (CA); admitted pro hac vice)
201 Redwood Shores Parkway Redwood Shores, CA 94065 Phone: (650) 802-3000 Facsimile: (650) 802-3100 Email: jared.bobrow@weil.com
Attorneys for Plaintiffs

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CERTIFICATION OF FILING AND SERVICE
I hereby certify that on October 22, 2015, I electronically filed the foregoing document with the United States District Court for the District of Rhode Island, and it is available for viewing and downloading from the ECF system for all counsel of record. I further certify that on this day I caused to be served, via ECF, a copy of said document to the attorneys of record listed below:

Via ECF:
Brenda D. Baum, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Phone: (401) 274-4400 x 2294 Facsimile: (401) 222-3016 Email: bbaum@riag.ri.gov
Edward G. Mullaney, Esq. Special Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Phone: (401) 274-4400 Facsimile: (401) 222-2995 Email: emullaney@riag.ri.gov

Neil F.X. Kelly, Esq. Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Phone: (401) 274-4400 Facsimile: (401) 222-2995 Email: nkelly@riag.ri.gov
Ariele Yaffee, Esq. Special Assistant Attorney General R.I. Department of the Attorney General 150 South Main Street Providence, RI 02903-2907 Phone: (401) 274-4400 Facsimile: (401) 222-2995 Email: ayaffee@riag.ri.gov

/s/ Sara Michelle Bartosz SARA MICHELLE BARTOSZ (Bar No. 6194058
(IL); admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 Email: sbartosz@childrensrights.org
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 Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 1 of 28 PageID #: 28495
EXHIBIT A

I

/

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 2 of 28 PageID #:

28496

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

)

ANDREW C., by Next Fziend Gregory C. )

Elliott; MATTHEW R. by Next Friend

)

Elaine Macintosh; and SEAN M. by Next )

FriendElaine Macintosh; for themselves )

and those similarly situated,

)

)

Plaintiffs

)

)

v.

)

)

GINA M. RAIMONDO, in her official

)

capacity as Governor of the State of Rhode )

Island; ERIC J. BEANE, in his official

)

capacity as Secretary of the Executive Office )

ofHealth & Human Services; and

)

TRISTA PICCOLA, in her official capacity )

as Director of the Department of Children, )

Youth & Families,

)

)

Defendants.

)

C.A. No. 1:07-cv-241-WES-PAS

AGREEMENT
A. INTRODUCTION
Section 1. Preamble
Whereas, on June 28, 2007, Plaintiffs commenced this lawsuit naming the Governor of the State of Rhode Island, the Secretary of the Executive Office of Health and Human Services, and the Director ofthe Rhode Island Department of Children, Youth and Families ("DCYF") as State Defendants, all in their official capacities. The case was filed on behalf of a putative class of all children who are or will be in the legal custody of DCYF due to a report or suspicion of abuse or neglect, alleging violations of their constitutional rights to substantive due process and familial association, and their alleged statutory rights to adequate case plans and foster care maintenance payments.

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 3 of 28 PageID #: 28497

J!Vhereas, the lawsuit alleges the following systemic deficiencies:

•

DCYF assigns excessive caseloads to its caseworkers, thereby undermining

their ability to perform their tasks adequately;

•

DCYF fails to timely and appropriately license and oversee foster care

placements;

•

DCYF fails to timely and adequately investigate abuse and neglect;

•

DCYF fails to maintain an adequate placement array to meet the needs of

all children in care, and as a result, children are placed in inappropriate

and/or unsafe placements;

•

DCYF fails to provide children with timely and adequate case plans; and,

•

DCYF does not provide adequate foster care maintenance payments to fos-

ter parents.

Whereas, after taking office in January 2015, Governor Raimondo ordered reform of the Rhode Island child welfare system and the operations ofDCYF. A comprehensive review ofDCYF was undertaken. DCYF leadership, staff, stakeholders, and outside consultants collaborated and assessed the agency, its functions, and divisions to understand the processes and improvements needed and to prioritize goals for the agency. One overarching goal and commitment of the agency is to improve overall services to children and families through data-driven decision-making and innovation. The Governor also directed DCYF to adopt a Lean Initiative to improve productivity and service quality for children and families by promoting efficiency and value while eliminating waste.

Whereas, DCYF is focused on the following overarching guiding principles and defined agency goals:

•

Provide the right service, at the right time, at the right cost to our children

and families;

•

Ensure competence, accountability, and professionalism at all levels of the

agency;

•

Improve employee engagement to raise morale and productivity;

•

Utilize data to inform decision-making;

•

Reduce the number of children and youth being placed in congregate care

settings;

•

Increase the number of children and youth placed in kinship care with sib-

ling placement priority;

•

Increase the number of children and youth placed in family-based settings;

•

Reduce placement disruptions;

•

Reduce the length of stay of youth in congregate care; and,

•

Safely increase the number of youth returning home.

2

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Jillhereas, DCYF is committed to tracking and monitoring data and information, as well as providing reports and transparency to demonstrate improvement toward the goals of the agency to better serve children and families.
Whereas, DCYF is committed to tracking and assessing the types of placements and services needed for the children, youth, and families in DCYF care on a continual basis.
Jillhereas, DCYF is committed to understanding, monitoring, and developing the services and placements for the agency's population of children and families in relation to their needs.
·Whereas, DCYF is committed to providing services to children and their families based on the needs of the children and families.
Whereas, DCYF is committed to placing children based on their needs at any given point in time and is committed to reducing congregate care placements where appropriate.
Whereas, DCYF is committed to assessing Family Service Unit social caseworker workloads based on a variety of factors and on a continual basis.
Jillhereas, DCYF is committed to periodic visitation, when appropriate, between children in foster care and their families (parent(s), siblings). DCYF is also committed to providing that monthly face-to-face visitation between the child and the worker is being conducted and documented.
Jillhereas, DCYF is committed to licensing foster homes in an effective and efficient manner. DCYF is also committed to maintaining a focus on identifying and timely licensing of kinship homes.
Whereas, DCYF is committed to providing foster care maintenance payments in accordance with the Adoption Assistance and Child Welfare Act.
Jillhereas, DCYF is committed to providing children with case plans in accordance with the Adoption Assistance and Child Welfare Act.
Whereas, reduction of maltreatment of children in care is a core priority.
Jillhereas, the State denies all claims of wrongdoing asserted in connection with the Complaint and no finding of liability has been made.
Jillhereas, the Parties wish to avoid the expense and disruption of litigation on the issues presented in this litigation, and are prepared to settle their differences without
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admitting any fault, liability, or wrongdoing asserted in connection with Plaintiffs' Complaint;
NOW THEREFORE, IT IS HEREBY AGREED, upon the stipulation and agreement of the Parties, through the undersigned, that this action is settled, subject to the approval of the United States District Court for the District of Rhode Island pursuant to the Federal Rules of Civil Procedure, on the following terms and conditions:
Section 2. Definitions (capitalized terms in this Agreement have their defined meaning herein)
a. "Commitment" shall refer to the requirements set forth in Section B that are required for exit of Sections B.1 through B.12 from monitoring and the jurisdiction of the Court.
b. "Complaint" shall refer to Plaintiffs' Fourth Amended Complaint filed in the matter of Andrew C} et al v. Raimondo} et al, 07-cv-241-S, Dkt. No. 550.
c. "Court" shall refer to the United States District Court for the District for Rhode Island in the case of Andrew C} et al v. Raimondo} et al., 07-cv-241S.
d. "Data Validator" shall have experience with research design, research methods using mixed methods (quantitative and qualitative), statistical analysis, and program evaluation in the areas of child welfare and behavioral health. The Data Validator shall be well versed in child welfare principles of safety, permanency, and well-being, and have knowledge of best practices in child welfare casework, evidence-based programs, and evidence-informed programs, and measurement of child welfare performance outcomes.
The Data Validator shall be the independent evaluator and final arbiter of the timeliness, accuracy ofthe methodology, as well as the statistical validity and reliability of the DCYF data (including the Rhode Island Children's Information System (RICHIST) data, case sample logistics, and documentation in support ofexceptions) submitted to the Monitoring Team pursuant to this Agreement.
The Data Validator shall agree to be bound by the Confidentiality Order entered by the Court (Dkt. No. 133) that remains in full force and effect during the implementation and monitoring of this Agreement.
e. "Monitoring Team" shall refer to the OCA and the Data Validator together.
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f. "OCA'' shall refer to the R.I. Office ofthe Child Advocate established by R.I. Gen. Laws§ 42-73-1 et seq. and shall serve as the Monitor for purposes of providing oversight to the Commitments in this Agreement. In the role of Monitor, the OCA shall receive and review the progress reports that have been determined to be valid and reliable by the Data Validator. The OCA, in the role of Monitor, shall confirm whether the Commitment has been met or not met. For Commitments for which a certain numerical percentage is required, the OCA shall make this determination based upon the information received from the Data Validator.
g. "Parties" shall refer collectively to the Plaintiffs and State together.
h. "Plaintiffs" shall refer collectively to the Named Plaintiffs, and the entire class of individuals as certified by the Court, comprising "all children who are or will be in the legal custody of the Rhode Island Department of Children, Youth and Families due to a report or suspicion of abuse or neglect." Plaintiffs shall act and be notified for purposes of this Agreement by and through the Plaintiffs' Attorneys.
1. "Plaintiffs' Attorneys" shall refer to attorneys at Children's Rights, Inc. and Weil Gotshal & Manges LLP, who have appeared in this action, and John Dineen as counsel for the Named Plaintiffs and the class.
J. "Released Claims" shall refer to all of Plaintiffs' claims, alleged either directly or indirectly, that have been brought or could have been brought based upon the operative facts averred in the Complaint and that arise from conduct, acts or omissions of the Released Parties occurring before this Agreement has exited from Court jurisdiction.
k. "Released Parties" shall refer to the State, and any of its past, present, and future agents, officials acting in their official capacities, legal representatives, agencies, departments, commissions and divisions, or employees.
l. "Releasing Party" shall refer to the Plaintiffs.
m. "Reporting Period" shall refer to the six-month period during which data is collected on any Commitment referenced in this Agreement. Each Reporting Period is of six months' duration and the resulting data will be provided to the Data Validator at the conclusion of the 30 day period immediately following the final day of the sixth month of the Reporting Period.
n. "State" shall refer collectively to the Governor of Rhode Island, the Secretary ofthe Executive Office of Health and Human Services, and the Director of DCYF, all in their official capacities and the Department of Children, Youth and Families ("DCYF" or "the agency"). This shall also apply with
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full force and effect to any successor and successor agencies that assume their office, functions, or operations. The State shall act and be notified for purposes of this Agreement by and through the Office of the Rhode Island Attorney General. Section 3. Releases The Plaintiffs hereby absolutely and unconditionally release and forever discharge all Released Parties from all Released Claims.
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B. SPECIFIC COl\1MITMENTS
1. Assessments
1.1. An assessment (including but not limited to the assessments utilized by DCYF or the clinical opinion of a licensed health care professional in an Assessment and Stabilization Center, mental health inpatient facility, or a facility of equivalent level or type) shall be performed upon entry into foster care or upon a placement change for every child who is in DCYF out of home care due to a report or suspicion of abuse or neglect.
a. For initial placements, the assessment shall be performed within 30 days of the child's removal.
b. For subsequent placement moves, the assessment shall be performed within 60 days prior to or 14 days following the placement change.
1.2. An assessment does not need to be performed in accordance with the above if:l
a. The placement move is to a placement at an equivalent level of need; or
b. The placement change is occurring because the placement is no longer available for reasons unrelated to the changing needs of the child (such as at the foster parents' request, due to a closure of the placement or other unavailability); or
c. The placement change is occurring to a child not in DCYF legal custody and out-of-home placement due to a report or suspicion of abuse or neglect (in voluntary custody due to mental health or behavioral health needs) or the child is open to DCYF for juvenile justice, as distinct from an allegation of abuse or neglect, and the placement change is occurring because of a juvenile justice reason or children's behavioral health reason, not because of the allegation of abuse or neglect that brought the child into DCYF care; or
1 When one or more of the exceptions listed apply, they shall be documented. The failure to document the exception shall not itself be considered a failure to comply with the underlying Commitments of this Agreement. However, an exception may not be applied for purposes of determining compliance -with this Section absent documentation. For this purpose, DCYF may provide to the Monitoring Team, up to 6 months from the end of the Reporting Period, documentation created no later than six months from the event that is being documented.
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d. The change in placement occurs pursuant to an order of the Rhode Island Family Court.2
1.3. If an assessment is not performed in a timely manner because of the unavailability of the child (for example, the child is AWOL, or placed in a psychiatric hospital and unavailable for assessment, or placed out-of-state), the case shall be identified and the circumstances surrounding the delay described to the Monitoring Team to determine whether this instance should be excluded from inclusion in measuring compliance with this requirement.
1.4. Once DCYF has demonstrated that 85% of assessments are being timely completed consistent with the Commitments set forth in Section 1.1, 1.2, and 1.3 of this Section for two consecutive six-month Reporting Periods, Section 1 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit from monitoring under this Agreement and the Court will not have continuing jurisdiction over the State with respect Section 1 or the Commitments in Sections 1.1 through 1.3.
2. Placement in Shelters and Assessment and Stabilization Centers
2.1. No child shall be placed in a shelter3 under any circumstances.
2 The Rhode Island Family Court has original jurisdiction to determine the placements and services for children in the care and custody of DCYF. The Family Court may thus authorize placements in the best interests of children that alter timelines and authorize variances from the goals and targets set forth in this Agreement. Should the Monitoring Team become concerned that the orders of the Rhode Island Family Court are creating a high proportion of exceptions from the Commitments in this Agreement, such that the exceptions have the potential of eroding the validity of the data collection regarding the Agreement goal or target at issue, the Monitoring Team may request a meeting with the Chief Judge of the Family Court, to include representative(s) of the State, to discuss the concerns regarding the volume of exceptions to the Agreement goal or target created by the orders of the Family Court.
3A shelter is a short-term residential placement without therapeutic programmmg.
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2.2. No child shall be placed in an Assessment and Stabilization Center4 unless DCYF has determined that:5

a. The child has a demonstrated need for placement in an Assessment and Stabilization Center for assessment and/or treatment; or

b. The placement is an emergency removal and immediate removal is necessary, and using professional judgment this placement is in the best
interest of the child; or

c. The placement is made pursuant to an order of the Rhode Island Family Court.6

2.3 a.

A child who is placed in an Assessment and Stabilization Center shall have the appropriateness of his/her continued placement reviewed and approved at least every 14 days. At least 90% of children placed in an Assessment and Stabilization Center shall be documented to have been
reviewed and approved at least every 14 days.7

b. A child who is placed in an Assessment and Stabilization Center for longer than 60 days must have the written approval documented in the child's case file from the Director or Director's designee. At least 95% of children placed in an Assessment and Stabilization Center for longer than 60 days shall be documented to have the written approval of the
Director or Director's designee .s

2.4 Once DCYF has demonstrated that it has achieved the Commitments set forth in Sections 2.1, 2.2, and 2.3 for two consecutive six-month Reporting Periods,

4An Assessment and Stabilization Center is a facility that is a short-term therapeutic program, which provides comprehensive assessment and stabilization ser-
vices to youth. 5 See Footnote 1 regarding documentation of exceptions. 6 See Footnote 2 regarding the authority and orders ofthe Rhode Island Family
Court. 7 The failure to document the review and approval shall not itself be considered
a failure to comply with the underlying Commitments of this Agreement. However, a review and approval may not be counted for purposes of determining compliance with this Section absent documentation. For this purpose, DCYF may provide to the Monitoring Team, up to 6 months from the end of the Reporting Period, documentation created no later than six months from the event that is being documented.
8 See Footnote 7 regarding documentation of the Director or Director's designee
approval.

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Section 2 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit from monitoring under this Agreement and the Court will not have continuing jurisdiction over DCYF with respect to Section 2 and the
Commitments in Sections 2.1 through 2.3.

3. Placement in Congregate Care
3.1. No child placed in DCYF care because of a report or suspicion of abuse orneglect shall be placed in congregate care (to include group homes, residential counseling, and residential treatment centers) unless:9
a. The child has treatment needs as found in the assessment process in Section 1, which require congregate care placement; the child has needs that cannot be addressed in their own home, with kin, or in another family-like setting, as found in the assessment process; or

b. The child is currently in congregate care awaiting step-down to an appropriate family-like setting within the timeframes provided in Section 3.2; or

c. The placement is an emergency removal and immediate removal is necessary, and using professional judgment, this placement is in the best interest of the child, and DCYF is working to identify a placement in another family-like setting, in which case an assessment shall be performed within ten (10) days to determine if continued placement in congregate care is appropriate. If at the point of the assessment it is determined that the child is not appropriate to congregate care then this exception no longer applies; or

d. The placement is made pursuant to an order of the Rhode Island Family

Court.IO

·

3.2 For children in congregate care for 90 days or longer, review of the placement shall be made every sixty (60) days for the six months following the execution of this Agreement and every forty-five (45) days thereafter to determine if the ongoing placement in congregate care is necessary. Ifit is determined through the review process that the child is ready to be stepped down to a less restrictive environment, DCYF shall initiate and act on referrals to a less restrictive

9 See Footnote 1 regarding documentation of exceptions. IO See Footnote 2 regarding the authority and Orders of the Rhode Island Family Court.

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environment and if not placed within thirty (30) days of that determination, the case will be reviewed by the Associate Director of the Permanency Division or her/his designee every fifteen (15) days thereafter with documentation in the child's case file.

3.3 Once DCYF has demonstrated 90% compliance with the Commitments set forth in Sections 3.1 and 3.2 for two consecutive six-month Reporting Periods, Section 3 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit from monitoring under this Agreement and the Court will not have continuing jurisdiction over DCYF with respect to Section 3 and the Commitments in Sections 3.1 and 3.2.

Section 4. Sibling Placement
4.1 At least 80% (using a proportional stratified random sample and sample size, both of which shall be proposed by the State and approved by the Data Validator) of siblings (newly removed or whose placement has changed within the reporting period) with at least one parent in common either through birth or adoption and who have lived together immediately prior to placement who enter placement at or within 30 days of each other shall be placed together unless:n

a.

DCYF determines that doing so would be harmful and/or not be in the

best interest of one or more of the siblings; or

b.

One ofthe siblings has treatment needs that need to be met in a special-

ized placement or facility; or

c.

The size of the sibling group makes such placement impossible due to

the licensing regulations restricting such placement to a single home

based on the size of the sibling group not as a result of a lack of licensed

capacity for a group of that size; or

d.

It is in the best interest of one or more of the siblings to be placed in a

kinship placement in which the other sibling(s) cannot be placed; or

11 See Footnote 1 regarding documentation of exceptions.
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e.

Specific placements are made by an order of the Rhode Island Family

Court.12

4.2 Once DCYF has demonstrated that 80% of siblings (newly removed or whose placement has changed within the reporting period) as defined in Section 4.1, excluding siblings who meet one of the criteria for exclusion from this requirement enumerated in Sections 4.1(a) through (e), have been placed together for two consecutive six-month Reporting Periods, Section 4 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit from monitoring under this Agreement and the Court will not have continuing jurisdiction over DCYF with respect to Section 4 or the Commitments in Section 4.1.

Section 5. Case Management
5.1 This Agreement articulates targets for attainment of casework goals in the areas of visitation (Section 6) and case plans (Section 10). Should the Commitments set forth in Sections 6 and 10 not be attained for two consecutive sixmonth Reporting Periods after the conclusion of the 6-month baseline-setting period in Section 10.1, DCYF shall undertake a workload study during the sixmonth corrective action period cited in Section C. DCYF will undertake a workload study in consultation with the Monitoring Team for purposes of determining the methodology for the workload study, and, in consultation with the Monitoring Team, will reasonably consider the results of the workload study and will exercise professional judgment with any implementation of a
corrective action plan.

Subsequent to the corrective action period, the Parties shall meet and confer regarding any disagreement on implementation. Should the Parties be unable to agree regarding the implementation of the workload study during the meet and confer period, then Section C(3) shall apply.
5.2 Once the Commitments set forth in Section 6 and 10 have been met for two consecutive six-month Reporting Periods then Section 5 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit from monitoring under this Agreement and the Court will not have continuing jurisdiction over DCYF with respect to Section 5.

12 See Footnote 2 regarding the authority and orders of the Rhode Island Family Court.
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Section 6. Visitation

6.1 Face-to-Face Visits with Children

a.

DCYF shall assure that the total number of visits made by caseworkers

on a monthly basis to children in foster care is not less than 95% of the

total number of such visits that would occur if each child were visited

once every month while in care, as required by Section 424(£) ofthe Child

and Family Services Improvement and Innovation Act, excluding chil-

dren absent from care (AWOL) and children who are placed out of state.

1.

Only one visit to each child in a single month shall be included

when calculating this percentage. Any visits in excess of one per

month shall not be included in the numerator.

n.

For purposes of Section 6.1, a face-to-face visit with a child may

be performed by any member of the DCYF Care Team for the

child. The Care Team includes the primary caseworker, supervi-

sor, child support technician, regional director, or a provider

agency that has been assigned or contracted with to provide case

management or visitation responsibilities.

b. Once DCYF has demonstrated at least 95% compliance with the Commitment in Section 6.1(a) for two consecutive six-month Reporting Periods, Section 6.1 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Federal Court will not have jurisdiction over DCYF with respect to Sec-
tion 6.1 or the Commitments in Section 6.1(a).

6.2 Qualitative Review of Face-to-Face Visits with Children

a. DCYF shall utilize a qualitative case review process of the quality of worker and child visits to assess issues pertaining to the safety, permanency, and well-being of the child and promote achievement of case goals. The qualitative case review shall utilize the review instrument utilized for the federal Child and Family Services Reviews (CFSR) process for purposes of conducting the qualitative case review and shall apply the two federal categories: "strength" or "area needing improvement." In at least 85% ofthe cases reviewed (using a proportional stratified random sample and sample size, both of which shall be proposed by the State and approved by the Data Validator) DCYF shall receive

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the "strength" designation on the case review. The role ofthe Data Val· idator in verifying the results ofthe qualitative case review process shall be to audit the results of the study by verifying the inter-rater reliability of the review conducted and verifying a random sub-sample of the re· view sample, which sub -sample shall be proposed by the State and approved by the Data Validator.
b. Once DCYF has demonstrated at least 85% compliance with the Com· mitment in Section 6.2(a) for two consecutive six-month Reporting Peri· ods, Section 6.2 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achieve· ment and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Federal Court will not have jurisdiction over DCYF with respect to Sec· tion 6.2 or the Commitments in Section 6.2(a).
6.3 Sibling Visitation
a. DCYF will develop a mechanism to track visitation between siblings in the legal custody ofDCYF due to a report or suspicion of abuse or neglect on at least a biannual basis, excluding children AWOL and children who are placed out of state.
b. At least 85% (using a proportional stratified random sample and sample size, both of which shall be proposed by the State and approved by the Data Validator) of children with siblings with at least one parent in com· mon either through birth or adoption who are both in the legal custody ofDCYF due to a report or suspicion of abuse or neglect shall have all of the sibling visits indicated in their case plans.
c. Once DCYF has demonstrated for two consecutive six-month Reporting Periods, after the conclusion of the 6-month baseline setting period in Section 10.1, that it has achieved the Commitments set forth in Sections 6.3(b), 6.4(b), 10.2 and 10.3, Section 6.3 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Court will not have jurisdiction over DCYF with re· spect to Section 6.3 or the Commitments in 6.3(b).
6.4 Parent-Child Visitation
a. DCYF shall develop a mechanism to track visitation between parent(s) and children in the legal custody ofDCYF due to a report or suspicion of
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abuse or neglect with a goal of reunification on at least a biannual basis to provide that the frequency of visitation is not less than that set forth in the child's case plan. As with other areas of casework, DCYF shall assure the qu-ality of parent-child visits through the continuous quality improvement process and provide documentation of the results of the continuous quality improvement process to the Monitoring Team and Plaintiffs' Attorneys.
b. At least 85% (using a proportional stratified random sample and sample size, both of which shall be proposed by the State and approved by the Data Validator) of children in the legal custody ofDCYF due to a report or suspicion of abuse or neglect with a goal of reunification shall have all of the visits required by their case plan. Exceptionsi3 to this requirement are cases in which the parents are not attending visits despite DCYF taking adequate steps to ensure the parents' ability to visit.
c. Once DCYF has demonstrated for two consecutive six-month Reporting Periods, after the conclusion of the 6-month baseline setting period in Section 10.1, that it has achieved the Commitments in Sections 6.3(b), 6.4(b), 10.2 and 10.3, Section 6.4 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of this achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Court will not have jurisdiction over DCYF with respect to Section 6.4 or the Commitment in Section 6.4(b).
Section 7. Licensing
7.1 A child shall not be placed in a non-kinship placement if that placement does not have an active license. For purposes of this provision, licensed non-kinship foster homes that are pending license renewal are considered active. Pursuant to the statute, in order to be pending and "active" the renewal must be timely and sufficient (R.I. Gen. Laws § 42-35-14). For purposes of this Agreement "timely" shall mean that an application for renewal has been filed prior to the expiration of the license and "sufficient" shall mean meeting the requirements set forth in Section 7.4 below. The sole exception to the prohibition in this Section shall be a placement made pursuant to an order of the Rhode Island Family Court.
7.2 Background checks are required prior to any placement pursuant to R.I. Gen. Laws§ 14-1-34. No child shall be placed into a prospective foster home pending licensure until such background checks are completed. DCYF shall comply
13 See Footnote 1 regarding documentation of exceptions.
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with these background check requirements at all times, except as required by an order of the Rhode Island Family Court.
7.3 At least 95% of all kinship foster home license applications, excluding pending foster care license applications that meet the requirements of R.I. Gen. Laws § 14·1-34 in that background checks have been satisfactorily completed and placement has been expressly authorized by the Rhode Island Family Court, shall be completed within the six-month period set forth in the state statute.
7.4 For at least 85% of all licenses due for renewal and where there is a child cur rently placed in the licensed home (where renewal is viewed as required two years from the date of issuance) DCYF clearances, Rhode Island BCI, and NCIC III checks shall be conducted for all household members 18 years and older within 30 days of the date that the renewal is due, including a national criminal records check for anyone in the home. In addition, a home safety in· spection of the caregivers' home shall be conducted within 30 days of the date that the licensing renewal is required.
7.5 Once DCYF has demonstrated for two consecutive six-month Reporting Peri· ods that it has achieved the Commitments set forth in Sections 7.1, 7.2, 7.3 and 7.4, Section 7 shall be deemed to be satisfied. DCYF shall notify the Monitor ing Team, with a copy to Plaintiffs' Attorneys, of this achievement and sup· porting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit the Agreement and the Court will not have jurisdiction over DCYF with respect to Section 7 or the Commitments made in Sections 7.1 through 7.4.
Section 8. Child Protective Services
8.1 At least 90% of reports of abuse or neglect are to be screened in or out for in· vestigation within the time frames set forth in DCYF policies duly promulgated consistent with the Rhode Island Administrative Procedures Act.
8.2 At least 90% of cases screened in for investigation shall be responded to within the time frames set forth in DCYF policies in force and effect at the time duly promulgated consistent with the Rhode Island Administrative Procedures Act.
8.3 At least 85% of investigations shall be completed within the time frames set forth in DCYF policies in force and effect at the time duly promulgated con· sistent with the Rhode Island Administrative Procedures Act, unless the in· vestigation is contin~ed due to circumstances beyond the control ofDCYF. Any extension ofthe time frame shall be approved by a supervisor. However, such
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exception beyond the regulatory timeframe shall be accompanied by an assessment of the safety of the child during the pendency of the investigation.14
8.4 Once DCYF has demonstrated for two consecutive six-month Reporting Periods that it has achieved the Commitments set forth above in Sections 8.1, 8.2 and 8.3, Section 8 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, ofthis achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Court will not have jurisdiction over DCYF with respect to Section 8, or the Commitments contained in Sections 8.1 through 8.3.
Section 9. Foster Care Maintenance Payments
9.1 DCYF will reassess the base rates for foster care maintenance considering the elements enumerated in 42 U.S.C. § 675(4)(A) to determine whether rate adjustments are needed and, if necessary based upon that reassessment, will advocate for additional appropriations from the General Assembly to increase the base rate. The first reassessment will occur in state fiscal year 2018. DCYF will amend the Rhode Island Administrative Code, pursuant to the Rhode Island Administrative Procedures Act, to include a regulation requiring that DCYF conduct a reassessment every three years.
9.2 Once DCYF amends the Rhode Island Administrative Code as described in Section 9.1 and makes its first reassessment in State fiscal year 2018, the Commitment in Section 9.1 will be deemed satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Court will not have jurisdiction over DCYF with respect to Section 9, or the Commitments contained in Section 9.1.
Section 10. Case Plans
10.1 Within the first six months following the execution of this Agreement, DCYF shall determine a baseline of current DCYF compliance with case plan content and timeliness elements set forth in the Adoption Assistance and Child Welfare Act, 42 U.S.C. § 670 et seq. and 45 C.F.R. §§1355-57.
10.2 DCYF shall assure that 80% of children in the legal custody of DCYF due to a report or suspicion of abuse or neglect have initial and updated case plans that meet the timeliness requirements enumerated in 42 U.S.C. § 670 et seq., and in 45 C.F.R. §§ 1355-57.
14 See Footnote 1 regarding documentation of exceptions.
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10.3 DCYF shall also assure, based on a review (using a proportional stratified random sample and sample size, both of which shall be proposed by the State and approved by the Data Validator), that 80% of children in the legal custody of DCYF due to a report or suspicion of abuse or neglect have case plans that document the elements enumerated in the Adoption Assistance and Child Welfare Act, 42 U.S. C. § 670 et seq., and in 45 C.F.R. §§ 1355-57.
10.4 Once DCYF has demonstrated for two consecutive six-month Reporting Periods that it has achieved the Commitments set forth in Sections 6.3(b), 6.4(b), 10.2 and 10.3, Section 10 shall be deemed to be satisfied. DCYF shall notify the Monitoring Team, with a copy to Plaintiffs' Attorneys, of the achievement and supporting data. A "Notice of Exit" from this Section will be filed with the Court. Thereafter, it shall exit this Agreement and the Court will not have jurisdiction over DCYF with respect to Section 10, or the Commitments contained in Sections 10.1 through 10.3.
Section 11. Maltreatment in Care 11.1 DCYF shall conduct an annual assessment ofthe substantiated events of abuse
or neglect occurring to a child in DCYF foster care custody, including but not limited to any substantiated events of abuse or neglect occurring to a child placed in an unlicensed kinship placement, over the preceding twelve months to identify any systemic factors that may have contributed to the events. DCYF shall publish and make publicly available an annual report setting forth the findings of the assessment and making recommendations for corrective actions to assure safety in foster care. 11.2 Once all of the Commitments in Sections 1-10 of this Agreement have been deemed to be satisfied and the Court no longer has jurisdiction over those other Commitments, then the Commitment contained in Section 11.1 shall also be deemed to be satisfied and the Court will not have jurisdiction over DCYF with respect to Section 11 or the Commitment contained in Section 11.1.
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Section 12. Foster Home Array 12.1 DCYF will develop an annual recruitment and retention plan for foster homes
in consultation with the Monitoring Team. The plan shall include: a. Targets for number of foster homes, including targets for special popu-
lations, for example adolescents, sibling groups, children with disabilities and medically fragile children, relevant during the period of the plan; and b. Foster home retention strategies, such as respite homes, enhanced foster parent training opportunities, and increased visitation with foster parents. 12.2 DCYF shall implement the annual recruitment and retention plan and make diligent efforts to meet the targets set forth therein, including requests for any additional resources required to meet them. 12.3 DCYF shall conduct an annual assessment of implementation of the plan over the preceding twelve months to identify any systemic factors that may have contributed to any shortfall in recruitment. DCYF shall publish and make publicly available an annual report setting forth the findings of the assessment including: (a) the numbers of homes recruited and retained by category, (b) the actual number of homes recruited in each ofthese categories during the twelve month implementation period, and (c) the total number of homes available for child placement in each of the categories at the beginning and end of the twelve month implementation period, and making recommendations for corrective actions to assure sufficient recruitment and retention of homes under the plan. 12.4 Once all of the Commitments in Sections 1-10 of this Agreement have been deemed to be satisfied and the Court no longer has jurisdiction over those other Commitments then the Commitment contained in Section 12 shall also be deemed to be satisfied and the Court will not have jurisdiction over DCYF with respect to Section 12, or the Commitments contained in Sections 12.1 through 12.3.
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Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 21 of 28 PageID #: 28515
C. ENFORCEMENT 1. The Court shall have continuing jurisdiction over this action to ensure
compliance with the terms of this Agreement. 2. Monitoring a. The first six-month Reporting Period pursuant to this Agreement shall commence on July 1, 2018, with the data to be provided to the Monitoring Team within 30 days from the end of the Reporting Period. With respect to Section 10 (Case Plans), for which a baseline will be deter mined, reporting may begin in the second six-month Reporting Period. Nothing herein shall prohibit DCYF from reporting on Section 10 earlier. b. On or before July 1, 2018, DCYF data and evaluation staff shall provide the Monitoring Team and the Parties with a template that provides the format for reporting on the data collected for all Commitments that re· quire a numerical percentage after the conclusion of every six-month Reporting Period and for reporting facts with respect to the progress and/or completion of DCYF's Commitments as defined in this Agree· ment. c. DCYF shall provide to the Monitoring Team all data, reports, and other information that the Monitoring Team deems necessary to measure the agency's performance on the Commitments in this Agreement. The Monitoring Team and DCYF may communicate regarding the data and information related to the Commitments in this Agreement. The Parties shall have access, through the Monitoring Team, to all information made available by DCYF to the Monitoring Team under the terms of this Agreement. d. DCYF shall prepare and submit to the Monitoring Team the data and reports referenced in Section C(2)(c) every six months after the first data transmission to occur within 30 days ofthe end ofthe relevant Reporting Period. Should the Data Validator need additional documents or information to validate the data, it shall send a letter to the State requesting such documents or information, and the Data Validator shall provide a copy of the request to Plaintiffs' Attorneys. Within six months from the close of each Reporting Period, the Monitoring Team shall determine and report facts with respect to the progress and/or completion of DCYF's Commitments as defined in this Agreement.
20

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 22 of 28 PageID #: 28516

e. All non-public information obtained by the Monitoring Team shall be maintained in a confidential manner. The Monitoring Team's reports shall be public documents, except that any individually identifying information and other confidential information protected from disclosure shall be redacted from any public report in accordance with the Confi-
dentiality Order entered by the Court.

f. The Monitoring Team shall determine and report facts with respect to the progress and/or completion of DCYF's Commitments as defined in this Agreement.

g.

The

Monitoring

\
Team

shall

be

permitted

to

speak

separately

with

all

Parties, except that if any attorney for the Parties wishes to speak ex

parte with the Monitoring Team, they must first give the other Parties

notice. The Monitoring Team may meet internally without notice to the

Parties or the Court. ·

3. Corrective Action Plan
Should any of the Commitments set forth in this Agreement not be met for two consecutive 6-month Reporting Periods, then the DCYF will develop a corrective action plan. The corrective action plan will be supplied to the Monitoring Team and Plaintiffs' Attorneys. The corrective action period shall continue until either the Commitment is met or six months have elapsed, whichever comes first. If the Commitment is met during this corrective action period and is sustained for two six-month periods (which may include the corrective action period), the Commitment exits from the Agreement and jurisdiction of the Court.

4. Meet and Confer
Should the corrective action plan referenced above in Section C(3) not result in the Commitments being met, the Parties shall meet and confer within 60 days, or at a later time if mutually agreed by the Parties, regarding further corrective actions, if any. If the Commitment is met during this meet and confer period and is sustained for two six-month periods (which may include the meet and confer period), the Commitment exits from the Agreement and jurisdiction of the Court.

5. Court Intervention
a. Should the Parties be unable to resolve the Commitments at issue through meeting and conferring in Section C(4) above, Plaintiffs may choose to request Court intervention. If Plaintiffs choose to request Court intervention, Plaintiffs shall provide to the State a notice of intent to seek Court intervention prior to filing. Such notice shall include with

21

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 23 of 28 PageID #: 28517
particularity the issues that Plaintiffs seek resolution from the Court. Within seven (7) business days, the State shall have an opportunity to address those issues prior to Plaintiffs seeking Court intervention.
b. Once all of the above requirements have been met, and Plaintiffs seek Court intervention, the OCA shall present a report to the Court concerning the issue(s) presented by Plaintiff and the OCA's position with regard to the issue(s). The Data Validator findings are to be included in the OCA's report to the Court.
6. Emergency Court Intervention
If Plaintiffs can show just cause to believe in good faith that DCYF has failed to comply with any Commitment in this Agreement and that this failure has caused or is likely to cause immediate and irreparable harm to children in DCYF foster care custody, Plaintiffs may, after following the process below in C(6)(a)-(c), seek immediate emergency reliefwith the Court, bypassing the enforcement provisions in Sections C(2) through C(4). Before seeking such relief with the Court, however:
a. Plaintiffs shall give written notice to the OCA and the State of the alleged failure, specifying any such alleged harm or risk ofimminent harm and causation between the alleged failure and harm or risk of imminent harm. This notice shall include, but is not limited to, all documentation that Plaintiffs rely on to support their decision to seek emergency relief; and
b. The Parties shall meet and confer for a period not to exceed 10 business days, unless extended by agreement of the Parties.
c. Should the OCA determine within the 10-day period referenced above in Section C(6)(b) that the documentation provided by Plaintiffs does not indicate that the alleged failure has caused or is likely to cause immediate and irreparable harm or risk of imminent harm to children in DCYF foster care custody, Plaintiffs shall be foreclosed from seeking emergency intervention from the Court. The OCA may seek an extension of this 10-day time period but not greater than 30 days. The OCA shall provide a written notification to the Plaintiffs and the State of whether Plaintiffs have shown just cause to enable Plaintiffs to invoke relief under this Section C(6). If the Plaintiffs elect to invoke the provisions under this Section, the Parties can upon mutual agreement of the Parties request mediation with United States District Court Judge John J. McConnell, Jr. prior to filing a request for emergency relief in Court.
22

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 24 of 28 PageID #: 28518
Ifthe Parties are unable to resolve the issue during the meet and confer period in C(6)(b), and the Monitoring Team has not made a determination foreclosing Plaintiffs from seeking relief from the Court as set forth above, Plaintiffs may seek immediate Court intervention.
23

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 25 of 28 PageID #: 28519
D. CONFIDENTIALITY The Confidentiality Order entered by the Court (Dkt. No. 133) shall remain in
full force and effect during the implementation and monitoring of this Agreement. All parties to the Settlement Agreement have participated in its drafting. All communications and written drafts in connection with the mediation and negotiation of this Settlement Agreement are strictly confidential and may not be used for any purpose, including to resolve any dispute that may arise as to the meaning ofthe terms of this Agreement.
24

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 26 of 28 PageID #: 28520

FOR THE DEFENDANTS,

STATE OF RHODE ISLAND By Its Attorney,

J

PETER F. KILMARTIN ATTORNEY GENERAL

Neil F .X. Kelly BrendaBaum Assistant Attorneys General Ariele Yaffee Special Assistant Attorney General R.I. Department of Attorney General 150 South Main Street Providence, Rhode Island 02903 (401) 274-4400 X 2284 Fax: (401) 222-3016 nkelly@riag .ri. gov ayaffee@riag .ri.gov
Date: ) /.eil /1 T

GOVER , GINA M. RAIMONDO, Governor of the State of Rhode Island
Date: -~I /_L._,/..___1g_ _ __

~g_~ ~

SECRETARY ERIC J. BEANE,

DIRECTOR TRISTA PICCOLA,

Secretary of the Executive Office of Health Director of the Rhode Island Depart-

and Human Services

ment of Children, Youth and Families

Date: \ /a,/ f Cb

Date: _ ___,)_-_ 3_ -_l..;:8o_ __

26

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 27 of 28 PageID #: 28521
FOR THE PLAINTIFFS, By Their Attorneys,
Sara M. Bartosz Elizabeth Pitman Gretter Joshua Rosenthal CHILDREN'S RIGHTS, INC. 88 Pine Street, Suite 800 New York, New York 10005 (212) 683-2210 Fax: (212) 683-401.5 Sbartos7,@childrensrights.org
John W. Dineen 305 South Main Street Providence, Rhode Island 02903 (401) 223·2397 Fax:: (401) 223-2399 jwdineenl@vahoo.com
\-----5-1~
Date:---~-----
25

Case 1:07-cv-00241-WES-PAS Document 586-1 Filed 01/08/18 Page 28 of 28 PageID #: 28522
IT IS SO ORDERED. William E. Smith, Chief Judge United State District Court for the District of Rhode Island Date: ____________________
27

 
 U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:07-cv-00241-WES-PAS

M. et al v. Chafee et al Assigned to: Chief Judge William E. Smith Referred to: Magistrate Judge Patricia A. Sullivan Case in other court: 1st Circuit, 09-01759
14-01585 (requires PACER login) Cause: 42:1983 Civil Rights Act

Date Filed: 06/28/2007 Date Terminated: 03/27/2019 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Sam M. by Next Friend Gregory C. Elliott; for himself and those similarly situated TERMINATED: 07/21/2011

represented by John William Dineen American Civil Liberties Union 305 South Main Street Providence, RI 02903 401-223-2397 Fax: 401-223-2399 Email: jwdineen1@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry Children's Rights 330 7th Avenue 4th Floor New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: mlowry@childrensrights.org TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sara Michelle Bartosz Children's Rights 88 Pine Street Suite 800 New York, NY 10005 212-683-2210 Fax: 212-683-4015 Email: sbartosz@childrensrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tony M. by Next Friend Gregory C. Elliott; for himself and those similarly

Jametta O. Alston 9 Columbia Avenue Warwick, RI 02888 451-7819 Email: jametta.alston4@gmail.com TERMINATED: 09/07/2012
Jared B. Bobrow Orrick, Herrington & Sutcliffe LLP 1000 Marsh Road Menlo Park, CA 94025 650-614-7400 Fax: 650-614-7401 Email: jbobrow@orrick.com TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase Children's Rights 330 7th Avenue 4th Floor New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: slambiase@childrensrights.org TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters Greenberg Traurig 153 Townsend Street 8th Floor San Francisco, CA 94107 415-655-1300 Fax: 415-707-2010 Email: wintersv@gtlaw.com TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

situated TERMINATED: 07/21/2011
Plaintiff Caesar S. by Next Friend Kathleen J. Collins; for himself and those similarly situated TERMINATED: 07/21/2011

Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz

Plaintiff
David T. by Next Friend Mary Melvin; for himself and those similarly situated TERMINATED: 10/01/2012

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow Children's Rights 330 7th Avenue Suite 400 New York, NY 10001

212-683-2210 Fax: 212-683-4015 Email: adembrow@childrensrights.org TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller Children's Rights 330 7th Avenue Suite 400 New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: jmiller@childrensrights.org TERMINATED: 08/20/2012 PRO HAC VICE
Shirim Nothenberg Children's Rights 330 7th Avenue 4th Floor New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: snothenberg@childrensrights.org TERMINATED: 05/04/2012 PRO HAC VICE
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE

Plaintiff Briana H. by Next Friend Gregory C. Elliott; for herself and those similarly situated TERMINATED: 06/01/2011
Plaintiff Alexis H. by Next Friend Gregory C. Elliott; for herself and those similarly

Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

situated TERMINATED: 06/01/2011
Plaintiff Clare H. by Next Friend Gregory C. Elliott; for herself and those similarly situated TERMINATED: 06/01/2011

Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Deanna H. by Next Friend Gregory C. Elliott; for herself and those similarly situated TERMINATED: 07/21/2011

Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012

Plaintiff
Danny B. by Next Friend Gregory C. Elliott TERMINATED: 08/28/2015

Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Adriana Teresa Luciano Children's Rights 330 Seventh Avenue 4th Floor New York, NY 10001 212-683-2210 Email: aluciano@childrensrights.org TERMINATED: 08/02/2016 PRO HAC VICE ATTORNEY TO BE NOTICED

Ira P. Lustbader Children's Rights 330 7th Avenue Suite 400 New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: ilustbader@childrensrights.org TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller (See above for address) TERMINATED: 08/20/2012 PRO HAC VICE
Joshua M. Rosenthal Children's Rights 330 Seventh Avenue 4th Floor New York, NY 10001 212-683-2210 Email: jrosenthal@childrensrights.org TERMINATED: 04/19/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam F. Ingber Children's Rights 330 7th Avenue Suite 400 New York, NY 10001 212-683-2210

Fax: 212-683-4015 Email: mingber@childrensrights.org TERMINATED: 11/21/2013 PRO HAC VICE
Rachel Brodin Nili Children's Rights 330 Seventh Avenue 4th Floor New York, NY 10001 212-683-2210 Email: rnili@childrensrights.org TERMINATED: 05/19/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
Vernon Winters (See above for address) TERMINATED: 08/16/2011
William Kapell Childrens' Rights 330 7th Avenue 4th Floor New York, NY 10001 212-683-2210 Fax: 212-683-4015 Email: wkapell@childrensrights.org TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Michael B. by Next Friend Gregory C. Elliot; for himself and those similarly situated TERMINATED: 07/21/2011
Plaintiff Cassie M. by Next Friend Kymberli Irons; for herself and those similarly situated TERMINATED: 04/06/2016

represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vernon Winters (See above for address) TERMINATED: 08/16/2011 LEAD ATTORNEY
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/14/2011 PRO HAC VICE
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address)

TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Adriana Teresa Luciano (See above for address) TERMINATED: 08/02/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Ira P. Lustbader (See above for address) TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller (See above for address) TERMINATED: 08/20/2012 PRO HAC VICE
Joshua M. Rosenthal (See above for address) TERMINATED: 04/19/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Miriam F. Ingber (See above for address)

Plaintiff
Alex C. by Next Friend Gregory C. Elliott; for himself and those similarly situated TERMINATED: 07/31/2012

TERMINATED: 11/21/2013 PRO HAC VICE
Rachel Brodin Nili (See above for address) TERMINATED: 05/19/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
William Kapell (See above for address) TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jodi Miller (See above for address) TERMINATED: 08/20/2012 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz

Plaintiff
Jared C. by Next Friend Gregory C. Elliott; for himself and those similarly situated TERMINATED: 05/07/2013

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012

Plaintiff
Terrence T. by Next Friend Gregory C. Elliott; for himself and those similarly situated TERMINATED: 08/19/2013

Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller (See above for address) TERMINATED: 08/20/2012 PRO HAC VICE
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow

Plaintiff
Tracy L. by Next Friend Kymberli Irons; for herself and those similarly situated TERMINATED: 12/11/2013

(See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller (See above for address) TERMINATED: 08/20/2012 PRO HAC VICE
Miriam F. Ingber (See above for address) TERMINATED: 11/21/2013 PRO HAC VICE
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
William Kapell (See above for address) TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John William Dineen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) TERMINATED: 06/12/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address)

Plaintiff
Andrew C. by Next Friend Gregory C. Elliott; for himself and those similarly situated

TERMINATED: 09/10/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Ira P. Lustbader (See above for address) TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Jametta O. Alston (See above for address) TERMINATED: 09/07/2012
Jared B. Bobrow (See above for address) TERMINATED: 06/06/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Jodi Miller (See above for address) TERMINATED: 08/20/2012 PRO HAC VICE
Miriam F. Ingber (See above for address) TERMINATED: 11/21/2013 PRO HAC VICE
Shirim Nothenberg (See above for address) TERMINATED: 05/04/2012 PRO HAC VICE
William Kapell (See above for address) TERMINATED: 06/12/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Matthew R. by Next Friend Elaine Macintosh; her himself and those similarly situated
Plaintiff Erin M. by Next Friend Elaine Macintosh; for herself and those similarly situated TERMINATED: 06/23/2016

Elizabeth Pitman Children's Rights 330 7th Avenue 4th Floor New York, NY 10001 212-683-2210 Email: egretter@childrensrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
John William Dineen (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 05/19/2016 ATTORNEY TO BE NOTICED
represented by Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John William Dineen (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 05/19/2016 ATTORNEY TO BE NOTICED
represented by Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sean M. by Next Friend Elaine Macintosh; for himself and those similarly situated
V. Defendant Gina M Raimondo in her official capacity as Governor of the State of Rhode Island

Elizabeth Pitman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John William Dineen (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 05/19/2016 ATTORNEY TO BE NOTICED
represented by Sara Michelle Bartosz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John William Dineen (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 05/19/2016 ATTORNEY TO BE NOTICED
represented by Ariele Yaffee Rhode Island Office of the Attorney General 150 South Main Street Providence, RI 02903 401-274-4400 Email: ayaffee@riag.ri.gov ATTORNEY TO BE NOTICED

Defendant
Steven M. Costantino in his official capacity as Secretary of the Executive Office of Health & Human Services (substituted as succesor to Jane A. Hayward)

Brenda D. Baum Attorney General's Office 150 South Main Street Providence, RI 02903 274-4400 x 2294 Fax: 222-3016 Email: bbaum@riag.ri.gov ATTORNEY TO BE NOTICED
Edward G. Mullaney RI Department of Attorney General 150 South Main Street Providence, RI 02903 401-274-4400 x2005 Fax: 401-222-3016 Email: emullaney@riag.ri.gov ATTORNEY TO BE NOTICED
James R. Lee Attorney General's Office 150 South Main Street Providence, RI 02903 401-274-4400 Fax: 401-222-2995 Email: jlee@riag.ri.gov TERMINATED: 08/01/2018 ATTORNEY TO BE NOTICED
Neil F.X. Kelly Department of Attorney General Civil Division 150 South Main Street Providence, RI 02903 401-274-4400 Fax: 401-222-2995 Email: nkelly@riag.ri.gov ATTORNEY TO BE NOTICED
represented by Ariele Yaffee (See above for address) ATTORNEY TO BE NOTICED
Brenda D. Baum (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kevin J. Aucoin in his official capacity as Acting Director of the Department of Children, Youth and Families

Edward G. Mullaney (See above for address) ATTORNEY TO BE NOTICED
James R. Lee (See above for address) TERMINATED: 08/01/2018 ATTORNEY TO BE NOTICED
Neil F.X. Kelly (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. Aucoin Department of Children, Youth and Families 101 Friendship St. Providence, RI 02903 528-3570 Fax: 528-3566 Email: kevin.aucoin@dcyf.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariele Yaffee (See above for address) ATTORNEY TO BE NOTICED
Brenda D. Baum (See above for address) ATTORNEY TO BE NOTICED
Edward G. Mullaney (See above for address) ATTORNEY TO BE NOTICED
James R. Lee (See above for address) TERMINATED: 08/01/2018 ATTORNEY TO BE NOTICED
Jane E. Morgan Department of Mental Health, Retardation and Hospitals

Defendant Janice E. DeFrances in her official capacity as Director of the Department of Children, Youth & Families
Defendant Elizabeth Roberts in her official capacity as Secretarty of the Executive Office of Health and Human Services

14 Harrington Rd. Barry Hall Cranston, RI 02920 462-6014 Fax: 462-2330 TERMINATED: 05/25/2012
Neil F.X. Kelly (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda D. Baum (See above for address) ATTORNEY TO BE NOTICED
Neil F.X. Kelly (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda D. Baum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil F.X. Kelly (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/28/2007
06/28/2007 06/28/2007

# Docket Text
1 COMPLAINT (pp. 1-50) against all defendants ( Filing Fee: $ 350.00, Receipt Number 66309/311), filed by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M. (Attachments: # 1 COMPLAINT, cont'd. (pp. 51-84); # 2 Civil Cover Sheet)(Duhamel, John) (Entered: 06/28/2007)
2 MOTION to Certify Class, MOTION to Appoint Class Counsel, with Supporting Memo by all plaintiffs. Responses due by 7/16/2007; Responses due by 7/16/2007 (Duhamel, John) (Entered: 06/28/2007)
3 DECLARATION of MARCIA ROBINSON LOWRY re 2 MOTION to Certify Class, MOTION to Appoint Class Counsel. (Duhamel, John) (Entered: 06/28/2007)

06/28/2007 06/28/2007 06/28/2007 06/28/2007 08/23/2007 08/23/2007 08/23/2007 08/24/2007
09/04/2007
09/07/2007 09/11/2007
09/11/2007

4 DECLARATION of JAMETTA O. ALSTON re 2 MOTION to Certify Class, MOTION to Appoint Class Counsel. (Duhamel, John) (Entered: 06/28/2007)
5 MOTION for Marcia Robinson Lowry to Appear Pro Hac Vice by all plaintiffs. (Duhamel, John) (Entered: 06/28/2007)
6 MOTION for Vernon Winters to Appear Pro Hac Vice by all plaintiffs. (Duhamel, John) (Entered: 06/28/2007)
7 MOTION for Susan Lambiase to Appear Pro Hac Vice by all plaintiffs. (Duhamel, John) (Entered: 06/28/2007)
8 Assented MOTION for an Extension of Time to File Answer re 1 Complaint, by all defendants. Responses due by 9/10/2007 (Baum, Brenda) (Entered: 08/23/2007)
9 Assented MOTION for an Extension of Time to File Response/Reply as to 2 MOTION to Certify Class MOTION to Appoint Counsel by all defendants. Responses due by 9/10/2007 (Baum, Brenda) (Entered: 08/23/2007)
10 STIPULATION by Sam M.. (Dineen, John) (Entered: 08/23/2007)
Motion Forwarded - 8 Assented MOTION for an Extension of Time to File Answer re 1 Complaint,, 9 Assented MOTION for an Extension of Time to File Response/Reply as to 2 MOTION to Certify Class MOTION to Appoint Counsel FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 08/24/2007)
11 MOTION for an Extension of Time TO FILE ITS RESPONSES TO PLAINTIFFS COMPLAINT 1 AND MOTION TO CERTIFY A CLASS AND APPOINTMENT OF COUNSEL WITH SUPPORTING MEMO 2 by Donald L. Carcieri, Jane A. Hayward, Patricia Martinez. Responses due by 9/21/2007 (Baum, Brenda) Modified on 9/7/2007 (Gilfillan, Barbara)created docket entry relationship. (Entered: 09/04/2007)
12 AMENDED COMPLAINT against all defendants, filed by Sam M..(Dineen, John) (Entered: 09/07/2007)
13 Assented MOTION for an Extension of Time To File Its Responses to Plaintiffs' Amended Complaint and Motion to Class Certification and Appointment of Counsel by Donald L. Carcieri, Jane A. Hayward, Patricia Martinez. Responses due by 9/28/2007 (Baum, Brenda) (Entered: 09/11/2007)
Motion Forwarded to Chambers 6 MOTION for Vernon Winters to Appear Pro Hac Vice, 7 MOTION for Susan Lambiase to Appear Pro Hac Vice, 5 MOTION for Marcia Robinson Lowry to Appear Pro Hac

09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/26/2007 09/26/2007 09/27/2007
09/28/2007

Vice FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/11/2007)
14 STIPULATION of parties extending time to answer complaint and respond to Motions to 9/10/07 signed by Judge Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
15 ORDER granting 8 Motion for Extension of Time to Answer Donald L. Carcieri answer due 9/10/2007; Jane A. Hayward answer due 9/10/2007; Patricia Martinez answer due 9/10/2007. . So Ordered by Judge Ronald R Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
16 ORDER granting 13 Motion for Extension of Time to answer amended complaint and motions to 10/1/07 . So Ordered by Judge Ronald R Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
Reset Deadlines: Donald L. Carcieri answer due 10/1/2007; Jane A. Hayward answer due 10/1/2007; Patricia Martinez answer due 10/1/2007. (Gilfillan, Barbara) (Entered: 09/12/2007)
17 ORDER granting 5 Motion to Appear Pro Hac Vice of Marcia Robinson Lowry . So Ordered by Judge Ronald R Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
18 ORDER granting 6 Motion to Appear Pro Hac Vice of Vernon Winters . So Ordered by Judge Ronald R Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
19 ORDER granting 7 Motion to Appear Pro Hac Vice of Susan Lambiase . So Ordered by Judge Ronald R Lagueux on 9/11/07. (Gilfillan, Barbara) (Entered: 09/12/2007)
20 MOTION for an Extension of Time to File Response/Reply as to 2 MOTION to Certify Class MOTION to Appoint Counsel by all defendants. Responses due by 10/15/2007 (Baum, Brenda) (Entered: 09/26/2007)
21 MOTION for Leave to File Under Seal Its Motion to Dismiss, Supporting Memorandum of Law and Exhibits by all defendants. Responses due by 10/15/2007 (Baum, Brenda) (Entered: 09/26/2007)
22 RESPONSE in Opposition re 20 MOTION for an Extension of Time to File Response/Reply as to 2 MOTION to Certify Class MOTION to Appoint Counsel filed by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M.. (Lambiase, Susan) (Entered: 09/27/2007)
23 RESPONSE in Opposition re 21 MOTION for Leave to File Under Seal Its Motion to Dismiss, Supporting Memorandum of Law and Exhibits filed by Caesar S., David T., Briana H., Alexis H., Clare H.,

10/01/2007 10/02/2007
10/02/2007 10/02/2007 10/12/2007 10/12/2007 10/12/2007 10/15/2007 10/15/2007 10/16/2007 10/16/2007

Deanna H., Danny B., Michael B., Sam M., Tony M.. (Lambiase, Susan) (Entered: 09/28/2007)
24 RESPONSE in Opposition re 2 MOTION to Certify Class MOTION to Appoint Counsel WITH SUPPORTING MEMO filed by Donald L. Carcieri, Jane A. Hayward, Patricia Martinez. (Baum, Brenda) (Entered: 10/01/2007)
Motion Forwarded to Chambers 20 MOTION for an Extension of Time to File Response/Reply as to 2 MOTION to Certify Class MOTION to Appoint Counsel, 21 MOTION for Leave to File Under Seal Its Motion to Dismiss, Supporting Memorandum of Law and Exhibits FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 10/02/2007)
TEXT ORDER granting rule of court 11 Motion for Extension of Time ; Reset Deadlines: Responses due by 9/24/2007. So Ordered by Deputy Clerk on 10/2/07. (Gilfillan, Barbara) (Entered: 10/02/2007)
25 MOTION to Dismiss Amended Complaint WITH SUPPORTING MEMO by all defendants.Responses due by 10/19/2007 (Baum, Brenda) (Entered: 10/02/2007)
26 ORDER granting 20 Motion for Extension of Time to File Response/Reply - Responses due by 10/8/2007. So Ordered by Judge Ronald R Lagueux on 10/11/07. (Gilfillan, Barbara) (Entered: 10/12/2007)
27 ORDER denying 21 Motion for Leave to File under seal. So Ordered by Judge Ronald R Lagueux on 10/11/07. (Gilfillan, Barbara) (Entered: 10/12/2007)
28 MOTION for an Extension of Time to File Response/Reply as to 25 MOTION to Dismiss Amended Complaint by all plaintiffs.Responses due by 10/29/2007 (Lambiase, Susan) (Entered: 10/12/2007)
29 MOTION for Reconsideration re 27 Order on Motion for Leave to File Under Seal WITH SUPPORTING MEMO by all defendants.Responses due by 11/1/2007 (Baum, Brenda) (Entered: 10/15/2007)
30 MOTION to Stay re 27 Order on Motion for Leave to File Under Seal WITH SUPPORTING MEMO by all defendants.Responses due by 11/1/2007 (Baum, Brenda) (Entered: 10/15/2007)
31 NOTICE of Appearance by Brenda D. Baum on behalf of all defendants (Baum, Brenda) (Entered: 10/16/2007)
32 NOTICE of Appearance by James R. Lee on behalf of all defendants (Lee, James) (Entered: 10/16/2007)

10/16/2007
10/16/2007 10/17/2007 10/17/2007 10/19/2007 11/02/2007 11/06/2007 11/07/2007 11/16/2007 11/20/2007

Motion Forwarded to Chambers 29 MOTION for Reconsideration re 27 Order on Motion for Leave to File Under Seal, 28 MOTION for an Extension of Time to File Response/Reply as to 25 MOTION to Dismiss Amended Complaint FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 10/16/2007)
33 ORDER granting MOTION TO SEAL EXHIBITS (exhibits in chambers)and denying MOTION TO SEAL MOTION AND MEMO 29 Motion for Reconsideration. So Ordered by Judge Ronald R Lagueux on 10/16/07. (Gilfillan, Barbara) (Entered: 10/16/2007)
34 MOTION to Dismiss 12 WITH SUPPORTING MEMO by all defendants.Responses due by 11/5/2007 (Baum, Brenda) Modified on 10/17/2007 (Gilfillan, Barbara)added docket entry relationship. (Entered: 10/17/2007)
35 ORDER granting 28 Motion for Extension of Time to File Response/Reply ; Set/Reset Deadlines: Responses due by 11/2/2007. So Ordered by Judge Ronald R Lagueux on 10/17/07. (Gilfillan, Barbara) (Entered: 10/17/2007)
36 REPLY to Response to Motion re 24 Response in Opposition to Motion filed by Caesar S., David T., Deanna H., Danny B., Michael B., Sam M., Tony M.. (Attachments: # 1 Declaration of Jametta O. Alston)(Winters, Vernon) (Entered: 10/19/2007)
37 RESPONSE in Opposition re 34 MOTION to Dismiss filed by all plaintiffs. (Attachments: # 1 Index of Exhibits# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Lambiase, Susan) (Entered: 11/02/2007)
38 Assented MOTION for an Extension of Time to File Response/Reply as to 37 Response in Opposition to Motion by all defendants.Responses due by 11/23/2007 (Baum, Brenda) (Entered: 11/06/2007)
39 ORDER granting 38 Motion for Extension of Time to File Reply ; Set Deadlines: Replies due by 11/26/2007.. So Ordered by Judge Ronald R Lagueux on 11/7/07. (Gilfillan, Barbara) (Entered: 11/07/2007)
40 Second MOTION for an Extension of Time to File Response/Reply as to 37 Response in Opposition to Motion by all defendants.Responses due by 12/3/2007 (Baum, Brenda) (Entered: 11/16/2007)
41 ORDER granting 40 Motion for Extension of Time to File Response/Reply re 37 Response in Opposition to Motion ; Set Deadlines: re 37 Response in Opposition to Motion filed by Briana H., Danny B., Michael B., Clare H., David T., Sam M., Tony M., Deanna H., Caesar S., Alexis H. (Responses due by 11/30/2007)Replies due by 11/30/2007.. So Ordered by Judge Ronald R Lagueux on 11/20/07. (Gilfillan, Barbara) (Entered: 11/20/2007)

11/29/2007 11/30/2007 12/03/2007 12/06/2007 12/07/2007 12/07/2007 01/10/2008 01/16/2008
01/16/2008 01/17/2008 01/22/2008

42 MOTION for Leave to File under seal exhibits by all defendants.Responses due by 12/17/2007 (Gilfillan, Barbara) Additional attachment(s) added on 11/29/2007 (Gilfillan, Barbara). (Main Document 42 replaced on 10/18/2017) (Potter, Carrie). (Entered: 11/29/2007)
43 RESPONSE to 37 and in Support re 34 MOTION to Dismiss, 25 MOTION to Dismiss Amended Complaint filed by all defendants. (Baum, Brenda) Modified on 12/3/2007 (Gilfillan, Barbara)added docket entry relationship. (Entered: 11/30/2007)
44 MOTION to Seal exhibits with supporting memo by all defendants. (Gilfillan, Barbara) (Potter, Carrie). (Entered: 12/03/2007)
45 RESPONSE in Opposition re 44 MOTION to Seal exhibits filed by all plaintiffs. (Lambiase, Susan) (Entered: 12/06/2007)
46 ORDER terminating 42 Motion for Leave to File; granting 44 Motion to Seal(sealed documents filed in chambers). So Ordered by Judge Ronald R Lagueux on 12/6/07. (Gilfillan, Barbara) (Potter, Carrie). (Entered: 12/07/2007)
47 Sealed Document (documents #42, #44 and #46); sealed documents in chambers. (Entered: 12/07/2007)
NOTICE of Hearing on 34 MOTION to Dismiss : Motion Hearing set for 1/16/2007 02:00 PM in Courtroom 4 before Judge Ronald R Lagueux. (Gilfillan, Barbara) (Entered: 01/10/2008)
Minute Entry for proceedings held before Judge Ronald R Lagueux : Motion Hearing held on 1/16/2008 re 34 MOTION to Dismiss filed by Patricia Martinez, Donald L. Carcieri, Jane A. Hayward; Ms Lambiase/Mr. Dineen and Ms. Olston for plaintiffs; Ms. Baum/Mr Lee and Mr Aucoin for defendants; arguments heard; case is continued to January 23, 2008 at 11:00 am. (Court Reporter Karen Wischnowsky in Courtroom 4 at 2:00.) (Gilfillan, Barbara) (Entered: 01/16/2008)
Reset Hearings: re 34 MOTION to Dismiss filed by Patricia Martinez, Donald L. Carcieri, Jane A. Hayward Evidentiary Hearing set for 1/23/2008 11:00 AM in Courtroom 4 before Judge Ronald R Lagueux. (Gilfillan, Barbara) (Entered: 01/16/2008)
48 TRANSCRIPT REQUEST by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M. for proceedings held on 1/16/2008 before Judge Ronald R. Lagueux.. (Lambiase, Susan) (Entered: 01/17/2008)
49 MEMORANDUM IN SUPPORT by all plaintiffs in support of Set/Reset Hearings Regarding Adequacy of Next Friends. (Lambiase, Susan) (Entered: 01/22/2008)

01/23/2008
01/23/2008 01/24/2008
01/24/2008 01/25/2008 01/25/2008 01/30/2008 01/30/2008 01/30/2008 02/15/2008

Minute Entry for proceedings held before Judge Ronald R Lagueux : Evidentiary Hearing held on 1/23/2008; Ms Olston/Lowry/Lambiase and Mr. Dineen for plaintiffs; Mr. Lee/Aucoin, Ms. Baum and defendants; opening statement made by plaintiff attorney; three witnesses testified; hearing continued to 1/24/08 at 2:00 pm. (Court Reporter Karen Wischnowsky in Courtroom 4 at 11:00.) (Gilfillan, Barbara) (Entered: 01/23/2008)
NOTICE of Hearing:Evidentiary Hearing set for 1/24/2008 02:00 PM in Courtroom 4 before Judge Ronald R Lagueux. (Gilfillan, Barbara) (Entered: 01/23/2008)
Minute Entry for proceedings held before Judge Ronald R Lagueux : Evidentiary Hearing held on 1/24/2008; Ms Olston/Lowry/Lambiase and Mr. Dineen for plaintiffs; Mr. Lee/Aucoin, Ms. Baum for defendants; One witness testified; both parties rest; matter taken under advisement; defendant's post hearing brief due 2/15/08; plaintiff's reply due 2/29/08 (Court Reporter Karen Wischnowsky in Courtroom 4 at 2:00.) (Gilfillan, Barbara) (Entered: 01/24/2008)
BRIEFING SCHEDULE - defendant's post hearing brief due 2/15/08; plaintiff's response due 2/29/08 (Gilfillan, Barbara) (Entered: 01/24/2008)
50 TRANSCRIPT REQUEST by Donald L. Carcieri, Jane A. Hayward, Patricia Martinez for proceedings held on 1/23/2008 - 1/24/2008 before Judge Ronald R. Lagueux.. (Baum, Brenda) (Entered: 01/25/2008)
51 TRANSCRIPT REQUEST by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M. for proceedings held on 1/23/2008 - 1/24/2008 before Judge Ronald R. Lagueux.. (Lambiase, Susan) (Entered: 01/25/2008)
52 TRANSCRIPT of Proceedings held on 1/16/08 before Judge Lagueux. Court Reporter: Karen Wischnowsky.. (Gilfillan, Barbara) (Entered: 01/30/2008)
53 TRANSCRIPT of Proceedings held on 1/23/07 before Judge Lagueux. Court Reporter: Karen Wischnowsky.. (Gilfillan, Barbara) (Entered: 01/30/2008)
54 TRANSCRIPT of Proceedings held on 1/24/07 before Judge Lagueux. Court Reporter: Karen Wischnowsky.. (Gilfillan, Barbara) (Entered: 01/30/2008)
55 MEMORANDUM IN SUPPORT by all defendants in support of 25 MOTION to Dismiss Amended Complaint. (Attachments: # 1 Exhibit G# 2 Exhibit H)(Baum, Brenda) (Entered: 02/15/2008)

02/29/2008
02/29/2008
03/06/2008 03/07/2008 03/20/2008 03/20/2008 03/27/2008
03/27/2008 04/03/2008 04/24/2008

56 RESPONSE in Opposition re 34 MOTION to Dismiss Plaintiffs' Supplemental Memorandum of Law filed by all plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Lambiase, Susan) Modified on 3/3/2008 (Gilfillan, Barbara)not a complete document only 1-48 pages. (Entered: 02/29/2008)
57 RESPONSE in Opposition re 34 MOTION to Dismiss Plaintiffs' Supplemental Memorandum of Law filed by all plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Lambiase, Susan) Modified on 3/3/2008 (Gilfillan, Barbara)refiling of document #56. (Entered: 02/29/2008)
58 MOTION to Strike 57 Response in Opposition to Motion, With Supporting Memo by all defendants.Responses due by 3/24/2008 (Baum, Brenda) (Entered: 03/06/2008)
59 RESPONSE in Opposition re 58 MOTION to Strike 57 Response in Opposition to Motion, filed by all plaintiffs. (Lambiase, Susan) (Entered: 03/07/2008)
NOTICE of Hearing on 58 MOTION to Strike exhibits 57 Response in Opposition to Motion, : Motion Hearing set for 3/27/2008 02:00 PM in Courtroom 4 before Judge Ronald R Lagueux. (Gilfillan, Barbara) (Entered: 03/20/2008)
Motion Forwarded to Chambers 58 MOTION to Strike 57 Response in Opposition to Motion, FORWARDED to Chambers of (Gilfillan, Barbara) (Entered: 03/20/2008)
Minute Entry for proceedings held before Judge Ronald R Lagueux : Motion Hearing held on 3/27/2008 re 58 MOTION to Strike 57 Response in Opposition to Motion, filed by Patricia Martinez, Donald L. Carcieri, Jane A. Hayward; Ms. Alston and Ms. Lambiase for plaintiffs; Ms Baum, Mr Lee and Mr. Aucoin for defendants; arguments heard, motion granted. (Court Reporter Deb Lajoie in Courtroom 4 at 2:00.) (Gilfillan, Barbara) (Entered: 03/27/2008)
60 TRANSCRIPT REQUEST by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M. for proceedings held on 3/27/2008 before Judge Ronald R. Lagueux.. (Lambiase, Susan) (Entered: 03/27/2008)
61 TRANSCRIPT of Proceedings held on 3/27/08 before Judge Lagueux. Court Reporter: Debra Lajoie.. (Gilfillan, Barbara) (Entered: 04/03/2008)
62 ORDER granting 58 Motion to Strike. So Ordered by Judge Ronald R Lagueux on 4/23/08. (Gilfillan, Barbara) (Entered: 04/24/2008)

04/29/2009 04/29/2009
05/28/2009
05/29/2009
05/29/2009 06/01/2009 06/01/2009 06/01/2009 06/18/2010 06/18/2010 07/20/2010
07/20/2010 07/27/2010

63 ORDER granting 34 Motion to Dismiss. So Ordered by Judge Ronald R Lagueux on 4/29/09. (Gilfillan, Barbara) (Entered: 04/29/2009)
64 CLERK'S JUDGMENT in favor of Donald L. Carcieri, Jane A. Hayward, Patricia Martinez against Alexis H., Briana H., Caesar S., Clare H., Danny B., David T., Deanna H., Michael B., Sam M., Tony M.. So Ordered by Deputy Clerk: on 4/29/09. (Gilfillan, Barbara) (Entered: 04/29/2009)
65 NOTICE OF APPEAL as to 63 Order on Motion to Dismiss, 64 Clerk's Judgment, by Caesar S., David T., Briana H., Alexis H., Clare H., Deanna H., Danny B., Michael B., Sam M., Tony M.. Appeal Record due by 6/29/2009. (Lambiase, Susan) (Entered: 05/28/2009)
66 APPEAL COVER SHEET AND CLERK'S CERTIFICATE Re: 65 Notice of Appeal filed by Briana H., Danny B., Michael B., Clare H., David T., Sam M., Tony M., Deanna H., Caesar S., Alexis H. (Gilfillan, Barbara) (Entered: 05/29/2009)
67 Certified and Transmitted Abbreviated Record on Appeal to US Court of Appeals re 65 Notice of Appeal (Gilfillan, Barbara) (Entered: 05/29/2009)
USCA Case Number 09-1759 for 65 Notice of Appeal (Gilfillan, Barbara) (Entered: 06/01/2009)
68 Supplemental Record on Appeal transmitted to US Court of Appeals re 65 Notice of Appeal (Gilfillan, Barbara) (Entered: 06/01/2009)
Filing fee: $ 455.00, receipt number 14670001006 (Gilfillan, Barbara) (Entered: 06/01/2009)
69 ORDER of USCA Reversing this Court's dismissal of the complaint and Remanding the case with directions to reinstate the complaint. 65 Notice of Appeal (Gilfillan, Barbara) (Entered: 06/21/2010)
70 USCA JUDGMENT as to 65 Notice of Appeal filed by Briana H., Danny B., Michael B., Clare H., David T., Sam M., Tony M., Deanna H., Caesar S., Alexis H. (Gilfillan, Barbara) (Entered: 06/22/2010)
71 MANDATE of USCA reversing this court's dismissal and reopening the case as to 65 Notice of Appeal filed by Briana H., Danny B., Michael B., Clare H., David T., Sam M., Tony M., Deanna H., Caesar S., Alexis H. (Gilfillan, Barbara) (Entered: 07/20/2010)
Appeal Record Returned: 6 transcripts (Gilfillan, Barbara) (Entered: 07/20/2010)
72 TAXATION OF COSTS BY THE 1ST CIRCUIT IN THE AMOUNT OF $1,929.20 (Gilfillan, Barbara) (Entered: 07/27/2010)

08/04/2010 08/04/2010 08/13/2010 08/13/2010
09/23/2010 09/30/2010 10/01/2010 11/01/2010 11/01/2010 11/04/2010 11/05/2010
11/05/2010 11/05/2010

73 ORDER OF RECUSAL. So Ordered by Judge Ronald R Lagueux on 8/4/10. (Gilfillan, Barbara) (Entered: 08/04/2010)
Case Reassigned to Judge Mary M Lisi. Judge Ronald R Lagueux no longer assigned to the case. (Farrell Pletcher, Paula) (Entered: 08/04/2010)
74 NOTICE of Hearing: Rule 16 Conference set for Thursday, 9/30/2010 at 09:30 AM in Chief Judge Lisi Chambers - Room 307(Barletta, Barbara) (Entered: 08/13/2010)
75 AMENDED NOTICE of Hearing: Rule 16 Conference set for Thursday, 9/30/2010 at 09:30 AM in Chief Judge Lisi Chambers - Room 307; amended to correct time on notice (Barletta, Barbara) (Entered: 08/13/2010)
76 RULE 16 STATEMENT by Danny B., Michael B., Alexis H., Briana H., Clare H., Deanna H., Sam M., Tony M., Caesar S., David T.. (Lambiase, Susan) (Entered: 09/23/2010)
Minute Entry for proceedings held before Chief Judge Mary M Lisi: Rule 16 Conference held on 9/30/2010; counsel of record present (Barletta, Barbara) (Entered: 09/30/2010)
77 SCHEDULING ORDER: Defendants' Motion to Dismiss due by 11/1/2010; plaintiffs' response due by 12/1/10 - So Ordered by Chief Judge Mary M Lisi on 9/30/10. (Barletta, Barbara) (Entered: 10/01/2010)
78 MOTION to Seal Document by Donald L. Carcieri, Jane A. Hayward, Patricia Martinez. (Barletta, Barbara) (Entered: 11/01/2010)
79 MOTION to Dismiss for Lack of Jurisdiction by All Defendants. Responses due by 11/18/2010 (Attachments: # 1 Appendix A, # 2 Appendix B)(Baum, Brenda) (Entered: 11/01/2010)
NOTICE of Hearing: Telephone Conference set for Friday, 11/5/2010 at 11:00 AM in Chief Judge Lisi Chambers - Room 310 with counsel Brenda Baum and John Dineen(Barletta, Barbara) (Entered: 11/04/2010)
Minute Entry for proceedings held before Chief Judge Mary M Lisi: Telephone Conference held on 11/5/2010; Cousel present: John Dineen for pltfs; Brenda Baum for defts; (Barletta, Barbara) (Entered: 11/05/2010)
TEXT ORDER withdrawing 78 Motion to Seal Document - So Ordered by Chief Judge Mary M Lisi on 11/5/10. (Barletta, Barbara) (Entered: 11/05/2010)
TEXT ORDER enlarging time to respond to 79 MOTION to Dismiss for Lack of Jurisdiction filed by Patricia Martinez, Donald L. Carcieri, Jane A. Hayward; Reset Deadlines: Response to 79 Motion to Dismiss due on

11/05/2010 01/18/2011
01/19/2011 01/24/2011 01/25/2011
02/04/2011 02/04/2011 02/07/2011 02/07/2011 02/07/2011 02/08/2011 02/09/2011

or before 1/18/11 - So Ordered by Chief Judge Mary M Lisi on 11/5/10. (Barletta, Barbara) (Entered: 11/05/2010)
NOTICE of Hearing: Telephone Conference set for Monday, 12/20/2010 at 02:00 PM before Chief Judge Mary M Lisi with counsel Brenda Baum and John Dineen (Barletta, Barbara) (Entered: 11/05/2010)
80 RESPONSE in Opposition re 79 MOTION to Dismiss for Lack of Jurisdiction filed by All Plaintiffs. (Attachments: # 1 Exhibit 1. OCA v. Pontarelli, # 2 Exhibit 2. John G. v. L'Heureux, # 3 Exhibit 3. Title IV-E State Plan Pre-Print, # 4 Exhibit 4. R.C. v. Hornsby)(Lambiase, Susan) (Entered: 01/18/2011)
Motion Forwarded to Chambers 79 MOTION to Dismiss for Lack of Jurisdiction FORWARDED to Chambers of Chief Judge Mary M. Lisi (reply memo due 1/28/11) (Barletta, Barbara) (Entered: 01/19/2011)
81 Assented MOTION for an Extension of Time to File Its Reply Memorandum by All Defendants. Responses due by 2/10/2011 (Baum, Brenda) (Entered: 01/24/2011)
TEXT ORDER granting 81 Motion for Extension of Time to file reply to 80 Response in Opposition to Motion, ; Reset Deadlines: Reply due 2/7/11- So Ordered by Chief Judge Mary M Lisi on 1/25/11. (Barletta, Barbara) (Entered: 01/25/2011)
82 MOTION to Seal Document Exhibits in Support of Motion to Dismiss WITH SUPPORTING MEMO by All Defendants. (Farrell Pletcher, Paula) (Entered: 02/04/2011)
Motion Forwarded to Chambers 82 MOTION to Seal Document Exhibits in Support of Motion to Dismiss FORWARDED to the Chambers of Judge Lagueux. (Farrell Pletcher, Paula) (Entered: 02/04/2011)
83 RESPONSE in Support re 79 MOTION to Dismiss for Lack of Jurisdiction filed by All Defendants. (Baum, Brenda) (Entered: 02/07/2011)
84 EXHIBIT IN SUPPORT by All Defendants in support of 83 Response in Support of Motion. (Attachments: # 1 Appendix D)(Baum, Brenda) (Entered: 02/07/2011)
85 EXHIBIT IN SUPPORT by All Defendants in support of 83 Response in Support of Motion. (Baum, Brenda) (Entered: 02/07/2011)
86 EXHIBIT IN SUPPORT by All Defendants in support of 83 Response in Support of Motion. (Attachments: # 1 Appendix F, Part II)(Baum, Brenda) (Entered: 02/08/2011)
87 ORDER granting 82 Motion to Seal Document - So Ordered by Chief Judge Mary M Lisi on 2/9/11. (Barletta, Barbara) (Entered: 02/09/2011)

02/11/2011 02/22/2011 02/28/2011 03/01/2011 03/01/2011 03/01/2011 03/16/2011 03/16/2011 04/04/2011 05/06/2011
05/25/2011 05/25/2011

NOTICE of Hearing on Motion 79 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing set for Tuesday, 4/5/2011 at 10:00 AM in Courtroom 1 before Chief Judge Mary M Lisi. (Barletta, Barbara) (Entered: 02/11/2011)
88 MOTION to Continue Hearing on Motion to Dismiss by All Defendants. Responses due by 3/11/2011 (Baum, Brenda) (Entered: 02/22/2011)
89 RESPONSE in Opposition re 88 MOTION to Continue Hearing on Motion to Dismiss filed by All Plaintiffs. (Lambiase, Susan) (Entered: 02/28/2011)
Motion Forwarded to Chambers 88 MOTION to Continue Hearing on Motion to Dismiss FORWARDED to Chambers of Chief Judge Mary M. Lisi. (Barletta, Barbara) (Entered: 03/01/2011)
TEXT ORDER granting 88 Motion to Continue- So Ordered by Chief Judge Mary M Lisi on 3/1/11. (Barletta, Barbara) (Entered: 03/01/2011)
REVISED NOTICE of Hearing on Motion 79 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing RESET to Friday, 5/6/2011 at 11:00 AM in Courtroom 1 before Chief Judge Mary M Lisi. (Barletta, Barbara) (Entered: 03/01/2011)
90 MOTION for Jared Bobrow to Appear Pro Hac Vice by All Plaintiffs. (Duhamel, John) (Entered: 03/17/2011)
91 APPLICATION FOR ADMISSION PRO HAC VICE re 90 MOTION for Jared Bobrow to Appear Pro Hac Vice by All Plaintiffs. (Duhamel, John) (Entered: 03/17/2011)
TEXT ORDER granting 90 Motion to Appear Pro Hac Vice of Jared Bobrow - So Ordered by Chief Judge Mary M Lisi on 4/4/11. (Barletta, Barbara) (Entered: 04/04/2011)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Motion Hearing held on 5/6/2011 re 79 MOTION to Dismiss for Lack of Jurisdiction filed by Patricia Martinez, Donald L. Carcieri, Jane A. Hayward. -- Counsel present: Susan Lambiase, John W. Dineen, Jametta O. Alston (for Pltfs); Brenda D. Baum, James R. Lee (for Defts) -- Ms. Baum and Ms. Lambiase argue the motion. Court takes matter under advisement. Counsel to file a Stipulation withdrawing certain AACWA claims asserted within the Fourth Cause of Action contained in the 12 Amended Complaint. (Court Reporter Debra Lajoie in Courtroom 1 at 11:05.) (Duhamel, John) (Entered: 05/06/2011)
92 STIPULATION by All Parties. (Lambiase, Susan) (Entered: 05/25/2011)
93 TRANSCRIPT REQUEST for proceedings held on 5/6/2011 before Judge Mary M. Lisi.. (Lambiase, Susan) (Entered: 05/25/2011)

06/01/2011 06/13/2011
06/13/2011
06/13/2011 07/01/2011 07/05/2011 07/13/2011

94 STIPULATED ORDER withdrawing certain federal statutory claims, and substituting certain parties. So Ordered by Chief Judge Mary M. Lisi on 6/1/2011. (Duhamel, John) (Entered: 06/02/2011)
95 TRANSCRIPT of Defendants' Motion to Dismiss held on 5/6/11 before Judge Mary M. Lisi. Court Reporter/Transcriber Debra D. Lajoie, Telephone number 401-952-2731. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 7/5/2011. Redacted Transcript Deadline set for 7/14/2011. Release of Transcript Restriction set for 9/12/2011. (Lajoie, Debra) (Entered: 06/13/2011)
96 TRANSCRIPT of Appeal from Magistrate's Memorandum and Order, held on 6/8/11 before Judge Ronald R. Lagueux. Court Reporter/Transcriber Debra D. Lajoie, Telephone number 401-952-2731. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 7/5/2011. Redacted Transcript Deadline set for 7/14/2011. Release of Transcript Restriction set for 9/12/2011. (Lajoie, Debra) (Entered: 06/13/2011)
CORRECTIVE DOCKET ENTRY re: 96 Transcript, - filed in the wrong case. Transcript to be refiled in correct case. (Zinni, Concetta) (Entered: 06/13/2011)
97 MOTION for Leave to File Supplemental Complaint by Danny B., Michael B., Deanna H., Sam M., Tony M., Caesar S., David T.. Responses due by 7/18/2011 (Attachments: # 1 Supporting Memorandum , # 2 Exhibit A - Supplemental Complaint)(Lambiase, Susan) Modified on 7/5/2011 to remove superfluous text. (Duhamel, John). (Entered: 07/01/2011)
98 NOTICE of Supplemental Authorityby Danny B., Michael B., Deanna H., Sam M., Tony M., Caesar S., David T. re 80 Response in Opposition to Motion, (Attachments: # 1 Exhibit A - M.D. v. Perry)(Lambiase, Susan) (Entered: 07/05/2011)
99 Assented MOTION for an Extension of Time to File Objection to Plaintiffs' Motion for Leave to File a Supplemental Complaint by All Defendants. Responses due by 8/1/2011 (Baum, Brenda) (Entered: 07/13/2011)

07/14/2011 07/20/2011 07/20/2011 07/25/2011 07/27/2011 07/28/2011 08/03/2011 08/11/2011 08/15/2011
08/15/2011

TEXT ORDER granting 99 Motion for Extension of Time to file objection to 97 MOTION for Leave to File Supplemental Complaint. Reset Deadline: Responses due 7/20/2011. So Ordered by Chief Judge Mary M. Lisi on 7/14/2011. (Duhamel, John) (Entered: 07/14/2011)
100 RESPONSE in Opposition re 97 MOTION for Leave to File Supplemental Complaint with supporting memo filed by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. (Baum, Brenda) (Entered: 07/20/2011)
101 MEMORANDUM AND ORDER granting in part and denying in part 79 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Chief Judge Mary M. Lisi on 7/20/2011. (Duhamel, John) (Entered: 07/21/2011)
102 NOTICE of Hearing: Rule 16 Conference set for WEDNESDAY, 9/21/2011 at 09:30 AM in Chief Judge Lisi's Chambers (third floor) (Duhamel, John) (Entered: 07/25/2011)
103 REPLY to Response to Motion re 100 Response in Opposition to Motion for Leave to File Supplemental Complaint filed by Danny B., David T.. (Lambiase, Susan) (Entered: 07/27/2011)
Motion Forwarded to Chambers: 97 MOTION for Leave to File Supplemental Complaint FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 07/28/2011)
104 Defendants ANSWER to 12 Amended Complaint by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino.(Baum, Brenda) (Entered: 08/03/2011)
Set Deadlines: Any new briefs submitted in support of the parties' respective positions as to class certification are due by 9/14/2011. (Rule 16 Conference in this case is set for 9/21/2011.) (Duhamel, John) (Entered: 08/11/2011)
CORRECTIVE DOCKET ENTRY re entry made on 8/11/2011 setting deadline for filing of briefs. PLEASE NOTE THAT THIS ENTRY WAS MADE IN ERROR. -- Judge Lisi is requesting that no briefs be submitted in support of the parties' respective positions as to class certification. A Rule 16 conference in this case will be held on September 21, 2011 at 9:30 a.m. in Chief Judfge Lisi's Chambers. (Duhamel, John) (Entered: 08/15/2011)
105 MOTION to Withdraw as Attorney Vern Winters as Counsel of Record by Danny B., David T.. Responses due by 9/1/2011 (Bobrow, Jared) (Entered: 08/15/2011)

08/16/2011 09/02/2011
09/06/2011 09/07/2011 09/07/2011 09/14/2011 09/14/2011 09/14/2011
09/21/2011
09/28/2011 09/28/2011 09/28/2011

TEXT ORDER granting 105 Motion to Withdraw as Attorney. Attorney Vernon Winters terminated. So Ordered by Chief Judge Mary M. Lisi on 8/16/2011. (Duhamel, John) (Entered: 08/16/2011)
106 NOTICE by Danny B., Michael B., Alexis H., Briana H., Clare H., Deanna H., Sam M., Tony M., Caesar S., David T. REQUEST FOR WITHDRAWAL OF APPEARANCE FILED BY VERNON M. WINTERS, ESQ. (Winters, Vernon) (Entered: 09/02/2011)
107 MOTION to Withdraw as Attorney Susan Lambiase as Counsel of Record by Danny B., David T.. Responses due by 9/23/2011 (Lambiase, Susan) (Entered: 09/06/2011)
108 MOTION for Shirim Nothenberg to Appear Pro Hac Vice by Danny B., David T.. (Jackson, Kerrie) (Entered: 09/07/2011)
109 APPLICATION FOR ADMISSION PRO HAC VICE re 108 MOTION for Shirim Nothenberg to Appear Pro Hac Vice by Danny B., David T.. (Jackson, Kerrie) (Entered: 09/07/2011)
TEXT ORDER granting 108 Motion to Appear Pro Hac Vice of Shirim Nothenberg. So Ordered by Chief Judge Mary M. Lisi on 9/14/2011. (Duhamel, John) (Entered: 09/14/2011)
TEXT ORDER granting 107 Motion to Withdraw as Attorney. Attorney Susan Lambiase terminated. So Ordered by Chief Judge Mary M. Lisi on 9/14/2011. (Duhamel, John) (Entered: 09/14/2011)
110 RULE 16 STATEMENT of Facts and Legal Issues by Danny B., David T.. (Attachments: # 1 Exhibit A - Plaintiffs' Proposed Confidentiality Order, # 2 Exhibit B - Plaintiffs' Proposed Discovery Plan)(Lowry, Marcia Robinson) (Entered: 09/14/2011)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Rule 16 Conference held in Chambers on 9/21/2011. Counsel present: J. Alston, J. Dineen, M. Lowry, S. Nothenberg, B. Baum, J. Lee, J. Morgan, K. Aucoin. -- Ms. Baum to prepare Order for Court's signature pursuant to this conference. (Duhamel, John) (Entered: 09/21/2011)
111 STIPULATION re Recusal, filed by Plaintiffs and Defendants (Duhamel, John) (Entered: 09/28/2011)
TEXT ORDER entering 111 Stipulation re Recusal. So Ordered by Chief Judge Mary M. Lisi on 9/28/2011. (Duhamel, John) (Entered: 09/28/2011)
112 ORDER setting deadlines for exchange of information among the parties, and reserving dates for potential mediation. So Ordered by Chief Judge Mary M. Lisi on 9/28/2011. (Duhamel, John) (Entered: 09/28/2011)

10/25/2011 11/07/2011 12/06/2011 12/12/2011
12/19/2011 12/19/2011 02/02/2012 02/17/2012
02/21/2012 02/21/2012

NOTICE of Hearing: Settlement Conference set for Monday, 11/7/2011 at 10:00 AM in Chief Judge Lisi's Chambers (third floor) (Duhamel, John) (Entered: 10/25/2011)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Settlement Conference held in Chambers on 11/7/2011. Counsel of record present. (Duhamel, John) (Entered: 11/08/2011)
NOTICE of Hearing: TELEPHONE CONFERENCE set for Monday, 12/12/2011 at 01:00 PM in Chief Judge Lisi's Chambers. -- Counsel have been provided with call-in instructions. (Duhamel, John) (Entered: 12/06/2011)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 12/12/2011. Counsel participating: J. Dineen, M. Lowry, S. Nothenberg, K. Aucoin, B. Baum. (Pursuant to this conference, Ms. Baum to prepare Order for Court's signature.) (Duhamel, John) (Entered: 12/13/2011)
113 STIPULATION by Plaintiffs and Defendants: By JANUARY 31, 2012, the parties will either file a dismissal stipulation, notify the Court that they are finalizing agreement, or notify the Court that the parties are unable to resolve the case. (Duhamel, John) (Entered: 12/19/2011)
TEXT ORDER entering 113 Stipulation. So Ordered by Chief Judge Mary M. Lisi on 12/19/2011. (Duhamel, John) (Entered: 12/19/2011)
NOTICE of Hearing on Motion re 97 MOTION for Leave to File Supplemental Complaint: Motion Hearing set for Friday, 2/17/2012 at 02:00 PM in Courtroom 1 before Chief Judge Mary M. Lisi. (Duhamel, John) (Entered: 02/02/2012)
Minute Entry for proceedings held before Chief Judge Mary M Lisi: Motion Hearing held on 2/21/2012. Shirim Nothenberg, John W. Dineen and Marcia R. Lowry for the Plaintiff. Brenda D. Baum, James R. Lee and Kevin J. Aucoin for the Defendant. Court addresses. Counsel argue. Chambers conference. (Court Reporter Karen Wischnowsky in Courtroom 1 at 2:12 PM.) (Jackson, Kerrie) (Entered: 02/21/2012)
TEXT ORDER finding as moot 2 Motion to Certify Class. So Ordered by Chief Judge Mary M. Lisi on 2/21/2012 pursuant to hearing with counsel on 2/17/2012. (Duhamel, John) (Entered: 02/21/2012)
TEXT ORDER denying 97 Motion for Leave to Supplement the Complaint. However, Plaintiffs may amend the Complaint, primarily by adding new plaintiffs. The parties have through Friday, 2/24/2012 within which to amend the Complaint. So Ordered by Chief Judge Mary M. Lisi on 2/21/2012 subsequent to hearing with counsel on 2/17/2012. (Duhamel, John) (Entered: 02/21/2012)

02/23/2012 02/24/2012
02/24/2012 02/24/2012 02/24/2012
02/28/2012 02/28/2012
03/05/2012 03/06/2012 03/06/2012

114 TRANSCRIPT REQUEST for proceedings held on 2/17/2012 before Judge Mary M. Lisi.. (Nothenberg, Shirim) (Entered: 02/23/2012)
115 AMENDED COMPLAINT Second Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action against Lincoln D. Chafee, Steven M. Costantino, filed by Danny B., David T..(Nothenberg, Shirim) (Entered: 02/24/2012)
116 STIPULATION to Amend Caption by Danny B., David T.. (Nothenberg, Shirim) (Entered: 02/24/2012)
117 NOTICE by Danny B., David T. re 115 Amended Complaint Revised Certification of Filing and Service (Nothenberg, Shirim) (Entered: 02/24/2012)
118 MOTION to Clarify Court's February 21, 2012 Order WITH SUPPORTING MEMO by Danny B., David T.. Responses due by 3/12/2012 (Attachments: # 1 Supporting Memorandum)(Nothenberg, Shirim) (Entered: 02/24/2012)
TEXT ORDER entering 116 Stipulation to Amend Caption. So Ordered by Chief Judge Mary M. Lisi on 2/28/2012. (Duhamel, John) (Entered: 02/28/2012)
NOTICE of Hearing: Telephone Conference set for TUESDAY, 3/13/2012 at 10:00 AM in Chief Judge Lisi's Chambers. -- Counsel have been provided with call-in instructions. (Duhamel, John) (Entered: 02/28/2012)
119 RESPONSE in Opposition re 118 MOTION to Clarify Court's February 21, 2012 Order filed by All Defendants. (Baum, Brenda) (Entered: 03/05/2012)
Motion Forwarded to Chambers: 118 MOTION to Clarify Court's February 21, 2012 Order FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 03/06/2012)
120 TRANSCRIPT of Hearing on Plaintiffs' Motion to File Supplemental Complaint held on February 17, 2012, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-351-8311. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 3/27/2012. Redacted Transcript Deadline set for 4/6/2012. Release of Transcript Restriction set for 6/4/2012. (Wischnowsky, Karen) (Entered: 03/06/2012)

03/09/2012 03/09/2012 03/13/2012 03/13/2012 03/13/2012 03/20/2012
03/22/2012 04/04/2012

121 REPLY to Response to Motion re 119 Response in Opposition to Motion for Clarification filed by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Nothenberg, Shirim) (Entered: 03/09/2012)
122 ANSWER to 115 Second Amended Complaint by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino.(Baum, Brenda) (Entered: 03/09/2012)
123 TRANSCRIPT REQUEST for proceedings held on 3/13/2012 before Judge Mary M. Lisi.. (Nothenberg, Shirim) (Entered: 03/13/2012)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 3/13/2012. Counsel participating: B. Baum, J. Lee, J. Dineen, M. Lowry, S. Nothenberg, K. Aucoin, J. Alston, R. Costa-Gibbs. -- SET DEADLINE: Confidentiality Agreement/Order to be submitted to the Court on or before March 27, 2012. (Court Reporter Karen Wischnowsky.) (Duhamel, John) (Entered: 03/13/2012)
TEXT ORDER denying 118 Motion to Clarify Court's February 21. 2012 Order. So Ordered by Chief Judge Mary M. Lisi on 3/13/2012. (Duhamel, John) Modified docket text on 3/14/2012. (Duhamel, John). (Entered: 03/13/2012)
124 TRANSCRIPT of Telephone Conference held on March 13, 2012, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-351-8311. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 4/10/2012. Redacted Transcript Deadline set for 4/20/2012. Release of Transcript Restriction set for 6/18/2012. (Wischnowsky, Karen) (Entered: 03/20/2012)
RESET DEADLINE: Per agreement of counsel and approval of the Court, the deadline for submission of a proposed Confidentiality Agreement/Order is extended from March 27, 2012 to April 3, 2012. (Duhamel, John) (Entered: 03/22/2012)
125 MOTION to Stay Pending the Entry of a Confidentiality Order with supporting memo by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 4/23/2012 (Attachments: # 1 Exhibit A: Non-Disclosure Agreement, # 2 Exhibit B: E-mail)(Baum, Brenda) (Attachments 1 and 2 replaced on 4/4/2012: Attachments were reversed at time of filing.) (Duhamel, John). (Entered: 04/04/2012)

04/05/2012 04/06/2012
04/10/2012 04/11/2012 04/11/2012 04/12/2012 04/16/2012 04/16/2012

126 ORDER: The parties in this case have advised the Court that they are unable to reach agreement on a mutually satisfactory confidentiality order. Each party has submitted a proposed confidentiality order to the Court. The Court refers the dispute regarding the confidentiality order to Magistrate Judge Lincoln Almond for resolution. So Ordered by Chief Judge Mary M. Lisi on 4/5/2012. (Duhamel, John) (Entered: 04/05/2012)
127 ORDER - On April 5, 2012, Chief Judge Lisi referred the parties' dispute over the terms of a confidentiality order to me for resolution. (Document No. 126). On or before April 16, 2012, each side shall file a Position Statement (not exceeding three pages) which is accompanied by a copy of its proposed version of the order. The Position Statement shall, in practical terms, identify the major area(s) of disagreement and explain why each side believes its proposed version best serves the interests of the parties, the attorneys, the Court and the public. After reviewing such submissions, I will take further action as I deem appropriate. So Ordered by Magistrate Judge Lincoln D. Almond on 4/6/2012. (Noel, Jeannine) (Entered: 04/06/2012)
128 RESPONSE in Opposition re 125 MOTION to Stay Pending the Entry of a Confidentiality Order filed by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Lowry, Marcia Robinson) (Entered: 04/10/2012)
Motion Forwarded to Chambers: 125 MOTION to Stay Pending the Entry of a Confidentiality Order FORWARDED to Chambers of Chief Judge Lisi(Any reply is due by 4/20/2012.) (Duhamel, John) (Entered: 04/11/2012)
MOTION REFERRED: 125 MOTION to Stay Pending the Entry of a Confidentiality Order. Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 04/11/2012)
129 REPLY MEMORANDUM by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino in support of 125 MOTION to Stay Pending the Entry of a Confidentiality Order . (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F)(Baum, Brenda) (Entered: 04/12/2012)
130 REPLY MEMORANDUM re 127 Order Defendants' Position Paper. (Attachments: # 1 Exhibit A)(Baum, Brenda) (Entered: 04/16/2012)
131 MEMORANDUM IN SUPPORT by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T. in support of 127 Order Plaintiffs' Position Statement Regarding Protective Order. (Attachments: # 1 Exhibit 1)(Nothenberg, Shirim) (Entered: 04/16/2012)

04/20/2012
04/20/2012
04/25/2012 04/25/2012 05/03/2012 05/03/2012
05/03/2012
05/04/2012 05/08/2012 05/24/2012 05/25/2012 06/06/2012

132 ORDER - Defendants shall promptly submit a revised version of their proposed Confidentiality Order to the Court for entry. So Ordered by Magistrate Judge Lincoln D. Almond on 4/20/2012. (Noel, Jeannine) (Entered: 04/20/2012)
TEXT ORDER denying as moot in view of order resolving dispute re: confidentiality order 125 Defendants' Motion for a Stay Pending the Entry of a Confidentiality Order. So Ordered by Magistrate Judge Lincoln D. Almond on 4/20/2012. (Noel, Jeannine) (Entered: 04/20/2012)
133 PROTECTIVE ORDER. So Ordered by Magistrate Judge Lincoln D. Almond on 4/24/2012. (Noel, Jeannine) (Entered: 04/25/2012)
134 NOTICE of Appearance by Neil F.X. Kelly on behalf of All Defendants (Kelly, Neil) (Entered: 04/25/2012)
135 MOTION for Jodi Miller to Appear Pro Hac Vice by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Jackson, Kerrie) (Entered: 05/03/2012)
136 APPLICATION FOR ADMISSION PRO HAC VICE re 135 MOTION for Jodi Miller to Appear Pro Hac Vice by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Jackson, Kerrie) (Entered: 05/03/2012)
137 MOTION to Withdraw as Attorney Shirim Nothenberg as Counsel of Record by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 5/21/2012 (Nothenberg, Shirim) (Entered: 05/03/2012)
TEXT ORDER granting 137 Motion to Withdraw as Attorney: Attorney Shirim Nothenberg terminated. So Ordered by Chief Judge Mary M. Lisi on 5/4/2012. (Duhamel, John) (Entered: 05/04/2012)
TEXT ORDER granting 135 Motion to Appear Pro Hac Vice of Jodi Miller. So Ordered by Chief Judge Mary M. Lisi on 5/8/2012. (Duhamel, John) (Entered: 05/08/2012)
138 MOTION to Withdraw of Jane Morgan by All Defendants. Responses due by 6/11/2012 (Kelly, Neil) (Entered: 05/24/2012)
TEXT ORDER granting 138 Motion of Jane Morgan to Withdraw as Counsel of Record for Defendants. So Ordered by Chief Judge Mary M. Lisi on 5/25/2012. (Duhamel, John) (Entered: 05/25/2012)
139 MOTION for Leave to File Motion to Admit One Additional Attorney Pro Hac Vice by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 6/25/2012 (Miller, Jodi) (Entered: 06/06/2012)

06/07/2012 06/08/2012 06/08/2012 06/12/2012 06/29/2012 07/02/2012 07/11/2012 07/12/2012
07/13/2012 07/16/2012
07/23/2012

TEXT ORDER granting 139 Motion for Leave to File a Motion for Pro Hac Vice (in order to admit one additionel attorney PHV). So Ordered by Chief Judge Mary M. Lisi on 6/7/2012. (Duhamel, John) (Entered: 06/07/2012)
140 MOTION for Miriam F. Ingber to Appear Pro Hac Vice by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Duhamel, John) (Entered: 06/08/2012)
141 APPLICATION FOR ADMISSION PRO HAC VICE re 140 MOTION for Miriam F. Ingber to Appear Pro Hac Vice by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T. (Duhamel, John) (Entered: 06/08/2012)
TEXT ORDER granting 140 Motion to Appear Pro Hac Vice of Miriam F. Ingber. So Ordered by Chief Judge Mary M. Lisi on 6/12/2012. (Duhamel, John) (Entered: 06/12/2012)
142 STIPULATION to extend time for Defendants to respond to Plaintiffs' First Set of Interrogatories. by All Parties. (Kelly, Neil) (Entered: 06/29/2012)
TEXT ORDER entering 142 Stipulation to extend time through 7/13/2012 for Defendants to respond to Plaintiffs' First Set of Interrogatories. So Ordered by Chief Judge Mary M. Lisi on 7/2/2012. (Duhamel, John) (Entered: 07/02/2012)
143 Joint MOTION for an Extension of Time to Complete Discovery by All Parties. Responses due by 7/30/2012 (Attachments: # 1 Exhibit A)(Kelly, Neil) (Entered: 07/11/2012)
144 ORDER granting 143 Joint Motion for Extension of Discovery Deadlines. Reset Deadlines: Factual Discovery due by 11/16/2012. Dispositive Motions due by 7/16/2013. -- Expert Witness Disclosures: Plaintiffs' due by 1/16/2013; Defendants' due by 3/16/2013. So Ordered by Chief Judge Mary M. Lisi on 7/12/2012. (Duhamel, John) (Entered: 07/12/2012)
145 STIPULATION to extend time for Plaintiffs to answer Defendants' First Sets of Interrogatories by All Parties. (Ingber, Miriam) (Entered: 07/13/2012)
146 MOTION for Leave to Take Additional Fact Depositions WITH SUPPORTING MEMO by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 8/2/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A)(Miller, Jodi) (Entered: 07/16/2012)
TEXT ORDER entering 145 Stipulation extending time through 8/27/2012 for Plaintiffs to answer Defendants' First Sets of

07/26/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012
07/30/2012 07/31/2012 07/31/2012 08/02/2012
08/03/2012

Interrogatories. So Ordered by Chief Judge Mary M. Lisi on 7/23/2012. (Duhamel, John) (Entered: 07/23/2012)
147 RESPONSE to Motion re 146 MOTION for Leave to Take Additional Fact Depositions with supporting memo filed by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. (Baum, Brenda) (Entered: 07/26/2012)
148 EXHIBIT IN SUPPORT by All Defendants in support of 147 Response to Motion Exhibit A-1. (Baum, Brenda) (Entered: 07/27/2012)
MOTION REFERRED: 146 MOTION for Leave to Take Additional Fact Depositions. -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 07/27/2012)
149 EXHIBIT IN SUPPORT by All Defendants in support of 147 Response to Motion . (Baum, Brenda) (Entered: 07/27/2012)
150 EXHIBIT IN SUPPORT by All Defendants in support of 147 Response to Motion . (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J)(Baum, Brenda) (Entered: 07/27/2012)
151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist WITH SUPPORTING MEMO by Danny B., Alex C., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 8/13/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Ingber, Miriam) (Entered: 07/27/2012)
152 STIPULATION dismissing Alex C by All Parties. (Baum, Brenda) (Entered: 07/30/2012)
NOTICE of Telephonic Hearing on Motion 146 MOTION for Leave to Take Additional Fact Depositions : Telephonic Motion Hearing set for 8/16/2012 02:00 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call.(Noel, Jeannine) (Entered: 07/31/2012)
153 ORDER entering 152 Stipulation, dismissing Alex C. as a Plaintiff re 115 Second Amended Complaint. So Ordered by Chief Judge Mary M. Lisi on 7/31/2012. (Duhamel, John) (Entered: 07/31/2012)
154 REPLY to Response to Motion re 147 Response to Motion for Leave to Take Additional Fact Depositions filed by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Ingber, Miriam) (Entered: 08/02/2012)
155 ASSENTED MOTION for an Extension of Time to File Answer re 151 MOTION To Be Evaluated By Plaintiffs' Retained

08/06/2012 08/06/2012 08/06/2012 08/06/2012 08/07/2012 08/09/2012 08/10/2012 08/14/2012 08/16/2012
08/16/2012

Psychologist by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 8/20/2012 (Baum, Brenda) (Entered: 08/03/2012)
156 MOTION for Adam Dembrow to Appear Pro Hac Vice by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Dineen, John) (Entered: 08/06/2012)
157 MOTION to Withdraw as Attorney Jodi Miller as Counsel of Record by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 8/23/2012 (Miller, Jodi) (Entered: 08/06/2012)
158 APPLICATION FOR ADMISSION PRO HAC VICE re 156 MOTION for Adam Dembrow to Appear Pro Hac Vice by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T. (Jackson, Kerrie) (Entered: 08/06/2012)
159 RESPONSE in Opposition re 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist filed by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. (Baum, Brenda) (Entered: 08/06/2012)
TEXT ORDER granting 155 Assented-to MOTION for an Extension of Time through 8/10/2012 to respond to 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist. So Ordered by Chief Judge Mary M. Lisi on 8/7/2012. (Duhamel, John) (Entered: 08/07/2012)
160 STIPULATION to extend time for Defendants to respond to Plaintiffs' Third set of Interrogatories by All Parties. (Kelly, Neil) (Entered: 08/09/2012)
161 MEMORANDUM IN SUPPORT by All Defendants in support of 159 Response in Opposition to Motion . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Baum, Brenda) (Entered: 08/10/2012)
TEXT ORDER entering 160 Stipulation: Defendants shall have through 9/27/2012 within which to respond to Plaintiffs' Third Set of Interrogatories. So Ordered by Chief Judge Mary M. Lisi on 8/14/2012. (Duhamel, John) (Entered: 08/14/2012)
RESCHEDULING NOTICE of Hearing on Motion (TIME CHANGE ONLY) 146 MOTION for Leave to Take Additional Fact Depositions : TELEPHONIC Motion Hearing RESCHEDULED for 8/16/2012 02:30 PM before Magistrate Judge Lincoln D. Almond. Attorneys to participate: Ingber and Baum. The court will initiate the call. TIME CHANGE. MOVED FROM 2:00 PM. (Noel, Jeannine) (Entered: 08/16/2012)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephonic Motion Hearing held on 8/16/2012 re 146 MOTION for Leave to Take Additional Fact Depositions filed by Tracy L., Danny

08/16/2012 08/17/2012
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B., Terrence T., Jared C., Alex C., David T., Cassie M. (Ingber, Baum, Kelly) All parties via phone; Argument; Motion granted in part and denied in part without prejudice; Order to follow (Courtroom A at 2:39 pm.) (Noel, Jeannine) (Entered: 08/16/2012)
162 TRANSCRIPT REQUEST for proceedings held on 8/16/2012 before Judge Lincoln D. Almond. (Entered: 08/16/2012)
TEXT ORDER Granting in part for the reasons stated during yesterday's telephonic hearing. Plaintiffs are granted leave to conduct up to 15 total depositions 146 Motion for Leave to Take Additional Fact Depositions. So Ordered by Magistrate Judge Lincoln D. Almond on 8/17/2012. (Noel, Jeannine) (Entered: 08/17/2012)
Remark: Transcript Request 162 , CD and docket forwarded to Joseph Fontes, Court Reporter, via Fed-ex (Noel, Jeannine) (Entered: 08/17/2012)
163 REPLY to Response to Motion re 159 Response in Opposition to Motion To Be Evaluated by Plaintiffs' Retained Psychologist filed by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Attachments: # 1 Exhibit 1)(Ingber, Miriam) (Entered: 08/17/2012)
MOTION REFERRED: 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist . (Objection filed at 159 ; Reply filed at 163 ) -Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 08/20/2012)
TEXT ORDER granting 156 Motion to Appear Pro Hac Vice of Adam Dembrow. So Ordered by Chief Judge Mary M. Lisi on 8/20/2012. (Duhamel, John) (Entered: 08/20/2012)
Motion Forwarded to Chambers: 157 MOTION to Withdraw as Attorney Jodi Miller as Counsel of Record FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 08/20/2012)
TEXT ORDER granting 157 Motion to Withdraw as Attorney. Attorney Jodi Miller terminated. So Ordered by Chief Judge Mary M. Lisi on 8/20/2012. (Duhamel, John) (Entered: 08/20/2012)
Motion No Longer Referred to Magistrate Judge Almond: 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist (Duhamel, John) (Entered: 08/21/2012)
Motion Forwarded to Chambers: 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 08/21/2012)
NOTICE of Hearing on Motion re 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist : Motion Hearing set for MONDAY,

08/22/2012
09/06/2012 09/06/2012 09/07/2012 09/10/2012
09/10/2012 09/10/2012 09/12/2012

9/10/2012 at 10:00 AM in Courtroom 1 before Chief Judge Mary M. Lisi. (Duhamel, John) (Entered: 08/21/2012)
164 TRANSCRIPT of Proceedings held on 8/16/12 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 9/12/2012. Redacted Transcript Deadline set for 9/24/2012. Release of Transcript Restriction set for 11/20/2012. (Fontes, Joseph) (Entered: 08/22/2012)
165 MOTION to Withdraw as Attorney Jametta O. Alston as Counsel of Record by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 9/24/2012 (Alston, Jametta) (Entered: 09/06/2012)
166 MOTION to Compel Discovery WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. Responses due by 9/24/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Dembrow, Adam) (Entered: 09/06/2012)
TEXT ORDER granting 165 Motion of Jametta O. Alston to Withdraw as Counsel of Record on behalf of Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T. -- Attorney Jametta O. Alston terminated. So Ordered by Chief Judge Mary M. Lisi on 9/7/2012. (Duhamel, John) (Entered: 09/07/2012)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Motion Hearing held on 9/10/2012. Miriam Ingber and John W. Dineen for the Plaintiff. Brenda D. Baum and Neil F.X. Kelly for the Defendant. Court addresses. Plaintiff addresses. 151 MOTION To Be Evaluated By Plaintiffs' Retained Psychologist is denied. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:08 AM.) (Jackson, Kerrie) (Entered: 09/10/2012)
TEXT ORDER denying 151 Motion. So Ordered by Chief Judge Mary M. Lisi on 9/10/2012. (Jackson, Kerrie) (Entered: 09/10/2012)
167 TRANSCRIPT REQUEST for proceedings held on 9/10/2012 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 09/10/2012)
168 TRANSCRIPT of Hearing on Plaintiffs' Motion for Psychological Evaluations held on September 10, 2012, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-3518311. Transcript may be viewed at the court public terminal or purchased

09/13/2012 09/13/2012 09/14/2012 09/24/2012
09/24/2012 09/25/2012
09/28/2012 10/01/2012 10/01/2012

through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 10/3/2012. Redacted Transcript Deadline set for 10/15/2012. Release of Transcript Restriction set for 12/11/2012. (Wischnowsky, Karen) (Entered: 09/12/2012)
169 MOTION for an Extension of Time to file Objection to Plaintiffs' 166 Motion to Compel by All Defendants. Responses due by 10/1/2012 (Baum, Brenda) Modified on 9/14/2012 to create document link. (Duhamel, John). (Entered: 09/13/2012)
170 RESPONSE to Motion re 169 MOTION for an Extension of Time to file Objection to Plaintiffs' Motion to Compel filed by Danny B., Jared C., Tracy L., Cassie M., David T., Terrence T.. (Dembrow, Adam) (Entered: 09/13/2012)
TEXT ORDER granting 169 Motion for Extension of Time to respond to 166 MOTION to Compel Discovery . So Ordered by Chief Judge Mary M. Lisi on 9/14/2012. (Duhamel, John) (Entered: 09/14/2012)
171 RESPONSE in Opposition re 166 MOTION to Compel Discovery WITH SUPPORTING MEMO filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K Filed Under Seal, # 12 Exhibit L Filed Under Seal, # 13 Exhibit M Filed Under Seal, # 14 Exhibit N Filed Under Seal)(Baum, Brenda) (Entered: 09/24/2012)
172 MOTION to Seal Documents re 171 Response in Opposition to 166 Motion to Compel Discovery: Exhibits K, L, M, N by All Defendants. (Duhamel, John) (Entered: 09/25/2012)
MOTIONS REFERRED: 166 MOTION to Compel Discovery, 172 MOTION to Seal Exhibits K, L, M, N re 171 Response in Opposition to 166 Motion to Compel. -- Motions referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 09/25/2012)
173 STIPULATION dismissing Named Plaintiff David T by All Parties. (Ingber, Miriam) (Entered: 09/28/2012)
TEXT ORDER entering 173 Stipulation of Dismissal as to Plaintiff David T. So Ordered by Chief Judge Mary M. Lisi on 10/1/2012. (Duhamel, John) (Entered: 10/01/2012)
174 REPLY to Response to Motion re 171 Response in Opposition to Motion, To Compel Discovery filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Dembrow, Adam) (Entered: 10/01/2012)

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175 Joint MOTION for an Extension of Time to Complete Discovery by All Parties. Responses due by 10/22/2012 (Attachments: # 1 Exhibit A)(Dembrow, Adam) (Entered: 10/04/2012)
176 AMENDED PRETRIAL SCHEDULING ORDER (granting 175 Motion for Extension of Time to Complete Discovery) -- Reset Scheduling Order Deadlines: Factual Discovery due by 2/15/2013. Expert Discovery due by 8/16/2013. Dispositive Motions due by 10/16/2013. Pretrial Memoranda due by 10/30/2013. Plaintiffs' Expert Witness Disclosures due by 4/16/2013; Defendants' Expert Witness Disclosures due by 6/17/2013. So Ordered by Chief Judge Mary M. Lisi on 10/9/2012. (Duhamel, John) (Entered: 10/09/2012)
177 MOTION for Protective Order With Supporting Memo by All Defendants. Responses due by 11/9/2012 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Kelly, Neil) (Entered: 10/23/2012)
178 Second MOTION to Compel Discovery WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 11/13/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Ingber, Miriam) (Entered: 10/26/2012)
179 Assented MOTION for an Extension of Time to File Response/Reply as to 177 MOTION for Protective Order by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 11/19/2012 (Ingber, Miriam) (Entered: 11/01/2012)
180 MOTION to Seal Documents: Exhibits F and G to 178 Second MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 11/01/2012)
TEXT ORDER granting 179 Assented Motion for Extension of Time to File Response to 177 MOTION for Protective Order -- Reset Deadline: Response due by 11/14/2012. So Ordered by Chief Judge Mary M. Lisi on 11/5/2012. (Duhamel, John) (Entered: 11/05/2012)
MOTION REFERRED: 180 MOTION to Seal Documents: Exhibits F and G to 178 Second MOTION to Compel Discovery -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/05/2012)
TEXT ORDER granting 180 Motion to Seal Document. So Ordered by Magistrate Judge Lincoln D. Almond on 11/5/2012. (Noel, Jeannine) (Entered: 11/05/2012)
181 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Additional attachment(s) added on 8/5/2016: # 1 sealed docs 2 of 6,

11/05/2012
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# 2 sealed docs 3 of 6, # 3 sealed docs 4 of 6, # 4 sealed docs 5 of 6, # 5 sealed docs 6 of 6) (Capraro, Dona). (Entered: 11/05/2012)
182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories With Supporting Memos by All Defendants. Responses due by 11/23/2012 (Attachments: # 1 Supporting Memorandum, # 2 Supporting Memorandum, # 3 Supporting Memorandum, # 4 Supporting Memorandum, # 5 Supporting Memorandum)(Kelly, Neil) (Additional attachment(s) added on 8/4/2016: # 6 motion to compel) (Capraro, Dona). (Entered: 11/05/2012)
183 MEMORANDUM IN SUPPORT by All Defendants in support of 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories Danny B. (Baum, Brenda) (Entered: 11/07/2012)
184 MEMORANDUM IN SUPPORT by All Defendants in support of 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories . (Baum, Brenda) (Entered: 11/07/2012)
185 MEMORANDUM IN SUPPORT by All Defendants in support of 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories Terrence T. (Baum, Brenda) (Entered: 11/07/2012)
186 MEMORANDUM IN SUPPORT by All Defendants in support of 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories Tracy L.. (Baum, Brenda) (Entered: 11/07/2012)
187 MEMORANDUM IN SUPPORT by All Defendants in support of 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories Cassie M. (Baum, Brenda) (Entered: 11/07/2012)
188 MOTION to Seal Documents : Exhibits in Support of Plaintiffs' 182 Motion to Compel More Responsive Answers to Defendants' First Set of Interrogatories by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Duhamel, John) (Entered: 11/08/2012)
MOTION REFERRED: 188 MOTION to Seal Documents: Exhibits in Support of Plaintiffs' 182 Motion to Compel. Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/08/2012)
TEXT ORDER granting 188 MOTION to Seal Documents : Exhibits in Support of Plaintiffs' 182 Motion to Compel More Responsive Answers to Defendants' First Set of Interrogatories by Danny B., Jared C., Tracy

11/08/2012 11/09/2012 11/13/2012 11/14/2012 11/14/2012
11/14/2012 11/14/2012
11/14/2012 11/14/2012

L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 11/8/2012. (Noel, Jeannine) (Entered: 11/08/2012)
189 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Entered: 11/08/2012)
NOTICE of Hearing on Motion 177 MOTION for Protective Order : Motion Hearing set for 11/20/2012 10:00 AM in Courtroom A before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 11/09/2012)
190 Assented MOTION for an Extension of Time to file Objection and Supporting Memorandum to Plaintiffs' 178 Second Motion to Compel by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 11/30/2012 (Baum, Brenda) (Entered: 11/13/2012)
MOTION REFERRED: 190 Assented MOTION for an Extension of Time to file Objection and Supporting Memorandum to Plaintiffs' Second Motion to Compel -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/14/2012)
191 RESPONSE in Opposition re 178 Second MOTION to Compel Discovery filed by All Defendants. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Baum, Brenda) Modified on 11/14/2012 to restrict access to Exhibit E. (Duhamel, John). (Entered: 11/14/2012)
192 MOTION to Seal Document: Exhibit E in support of 191 Response in Opposition to 178 Second Motion to Compel, by All Defendants. (Duhamel, John) (Entered: 11/14/2012)
MOTIONS REFERRED: 178 Second MOTION to Compel Discovery , 192 MOTION to Seal Document: Exhibit E in support of 191 Response in Opposition to 178 Motion. -- Motions referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/14/2012)
193 Third MOTION to Compel Discovery WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 12/3/2012 (Attachments: # 1 Supporting Memorandum)(Ingber, Miriam) (Entered: 11/14/2012)
194 DECLARATION of MIRIAM INGBER re 193 Third MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 9, # 8 Exhibit 11, # 9 Exhibit 12, # 10 Exhibit 13, # 11 Exhibit 14, # 12 Exhibit 15, # 13 Exhibit 16, # 14 Exhibit 17, # 15 Exhibit 18, # 16 Exhibit 19, # 17 Exhibit 20, # 18 Exhibit 21, # 19 Exhibit 22, # 20 Exhibit 23, # 21 Exhibit 24)(Ingber, Miriam) (Entered: 11/14/2012)

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195 RESPONSE in Opposition re 177 MOTION for Protective Order filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 11/14/2012)
196 DECLARATION of MIRIAM INGBER re 195 Response in Opposition to 177 Motion for a Protective Order by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 6, # 5 Exhibit 7, # 6 Exhibit 8, # 7 Exhibit 9, # 8 Exhibit 10, # 9 Exhibit 11, # 10 Exhibit 12, # 11 Exhibit 15, # 12 Exhibit 16, # 13 Exhibit 17, # 14 Exhibit 18, # 15 Exhibit 19, # 16 Exhibit 20, # 17 Exhibit 21, # 18 Exhibit 22, # 19 Exhibit 23, # 20 Exhibit 24, # 21 Exhibit 25, # 22 Exhibit 26, # 23 Exhibit 27, # 24 Exhibit 28, # 25 Exhibit 29, # 26 Exhibit 30, # 27 Exhibit 31, # 28 Exhibit 32, # 29 Exhibit 33, # 30 Exhibit 34, # 31 Exhibit 35, # 32 Exhibit 36, # 33 Exhibit 37, # 34 Exhibit 38, # 35 Exhibit 39, # 36 Exhibit 40, # 37 Exhibit 41, # 38 Exhibit 42, # 39 Exhibit 43, # 40 Exhibit 44)(Ingber, Miriam) (Entered: 11/14/2012)
MOTION REFERRED: 177 MOTION for Protective Order -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/15/2012)
197 MOTION to Seal Documents: Exhibits 4, 5, 13, and 14 in support of 196 Declaration of Miriam Ingber; by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 11/15/2012)
MOTIONS REFERRED: MOTION to Seal Documents: Exhibits 4, 5, 13, and 14 in support of 196 Declaration of Miriam Ingber. -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/15/2012)
198 MOTION for Protective Order with Supporting Memo by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/3/2012 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Kelly, Neil) (Entered: 11/15/2012)
199 MOTION to Seal Documents: Exhibits 7, 8, and 10 in support of 193 Third MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Duhamel, John) (Entered: 11/16/2012)
TEXT ORDER granting 172 Motion to Seal Documents re 171 Response in Opposition to 166 Motion to Compel Discovery: Exhibits K, L, M, N by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 11/19/2012. (Noel, Jeannine) (Entered: 11/19/2012)
TEXT ORDER granting 190 Assented MOTION for an Extension of Time up to and including November 14, 2012 to file Objection and Supporting Memorandum to Plaintiffs' 178 Second Motion to Compel by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. So Ordered

11/19/2012
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by Magistrate Judge Lincoln D. Almond on 11/19/2012. (Noel, Jeannine) (Entered: 11/19/2012)
200 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 sealed docs part 2, # 2 sealed docs part 3, # 3 sealed doc part 4, # 4 sealed doc part 5, # 5 sealed doc part 6, # 6 sealed doc part 7, # 7 sealed docs part 8, # 8 sealed docs part 9, # 9 sealed doc part 10, # 10 sealed doc part 11) (Capraro, Dona). (Entered: 11/19/2012)
TEXT ORDER granting 192 MOTION to Seal Document: Exhibit E in support of 191 Response in Opposition to 178 Second Motion to Compel, by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 11/19/2012. (Noel, Jeannine) (Entered: 11/19/2012)
TEXT ORDER granting 197 MOTION to Seal Documents: Exhibits 4, 5, 13, and 14 in support of 196 Declaration of Miriam Ingber; by Danny B., Jared C., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 11/19/2012. (Noel, Jeannine) (Entered: 11/19/2012)
201 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 11/19/2012)
TEXT ORDER granting 199 MOTION to Seal Documents: Exhibits 7, 8, and 10 in support of 193 Third MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 11/19/2012. (Noel, Jeannine) (Entered: 11/19/2012)
202 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 sealed docs part 2, # 2 sealed docs part 3, # 3 sealed docs part 4, # 4 sealed docs part 5, # 5 sealed docs part 6) (Capraro, Dona). (Entered: 11/19/2012)
203 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 11/19/2012)
204 REPLY to Response to Motion re 195 Response in Opposition to Motion for Protective Order filed by All Defendants. (Attachments: # 1 Exhibit A)(Kelly, Neil) (Entered: 11/19/2012)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 11/20/2012 re 177 MOTION for Protective Order filed by Lincoln D. Chafee, Kevin J. Aucoin, Steven M. Costantino. (Ingber, Dineen, Kelly, Baum) Argument; Discussion of Motion #198 and Motions to Compel; Court takes matter under advisement (Courtroom A at 10:00 am.) (Noel, Jeannine) (Entered: 11/20/2012)

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11/21/2012

205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 12/7/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Dembrow, Adam) (Entered: 11/20/2012)
206 TRANSCRIPT REQUEST for proceedings held on 11/20/2012 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Main Document 206 replaced with converted PDF version on 11/21/2012) (Duhamel, John). (Entered: 11/20/2012)
207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 12/7/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Ingber, Miriam) (Entered: 11/20/2012)
208 DECLARATION re 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ingber, Miriam) (Entered: 11/20/2012)
Forwarded Transcript Request 206 , CD of Hearing and Copy of Docket to Court Reporter Joseph Fontes via FedEx. (Saucier, Martha) (Entered: 11/21/2012)
209 MOTION to Seal Document: Exhibit C in support of 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 11/21/2012)
210 MOTION to Seal Document: Exhibit 1 in support of 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 11/21/2012)
211 RESPONSE in Opposition re 182 MOTION to Compel For More Responsive Answers to Defendants' First Set Of Interrogatories filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K)(Ingber, Miriam) (Entered: 11/21/2012)
212 DECLARATION of MIRIAM INGBER re 211 Response in Opposition to Motion, by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 11/21/2012)

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213 MOTION to Seal Documents: Exhibits D and G in support of 211 Response in Opposition to 182 Motion to Compel More Responsive Answers to Defendants' First Set Of Interrogatories, by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 11/21/2012)
MOTIONS REFERRED: 182 MOTION to Compel More Responsive Answers to Defendants' First Set Of Interrogatories; 213 MOTION to Seal Exhibits D and G re 211 Response in Opposition to 182 Motion to Compel. -- Motions referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/21/2012)
214 REPLY to Response to Motion re 191 Response in Opposition to Motion, to Compel Discovery filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 11/21/2012)
215 TRANSCRIPT REQUEST for proceedings held on 9/10/2012 before Judge Chief Judge Mary Lisi.. (Baum, Brenda) (Entered: 11/27/2012)
216 Assented MOTION for an Extension of Time to File Response/Reply to Plaintiffs' 3rd Motion to Compel Discovery by All Defendants. Responses due by 12/17/2012 (Baum, Brenda) (Entered: 11/29/2012)
MOTION REFERRED: 216 Assented MOTION for an Extension of Time to File Response to Plaintiffs' 3rd Motion to Compel Discovery -Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 11/29/2012)
TEXT ORDER granting 216 Motion for Extension of Time to File Response/Reply to Third Motion for Discovery within 5 days on a ruling on Defendants' Motion for Protective Order 177 . So Ordered by Magistrate Judge Lincoln D. Almond on 11/30/12. (Saucier, Martha) (Entered: 11/30/2012)
217 TRANSCRIPT of Proceedings held on 11/20/12 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 12/21/2012. Redacted Transcript Deadline set for 12/31/2012. Release of Transcript Restriction set for 2/28/2013. (Fontes, Joseph) (Entered: 11/30/2012)
218 REPLY to Response to Motion re 211 Response in Opposition to 182 Motion to Compel More Responsive Answers to Defendants' First

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Set of Interrogatories, filed by All Defendants. (Kelly, Neil) (Entered: 12/03/2012)
219 RESPONSE in Opposition re 198 MOTION for Protective Order filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit J, # 10 Exhibit K)(Ingber, Miriam) (Entered: 12/03/2012)
MOTION REFERRED: 193 Third MOTION to Compel Discovery. Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 12/04/2012)
MOTION REFERRED: 198 MOTION for Protective Order re Deposition. Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 12/04/2012)
220 MOTION to Seal Documents: Exhibits I, L, M, N, O, P, Q, R and S re 219 Response in Opposition to 198 Motion for Protective Order, by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 motion to seal and docs) (Capraro, Dona). (Entered: 12/04/2012)
MOTION REFERRED: 220 MOTION to Seal Documents: Exhibits I, L, M, N, O, P, Q, R and S re 219 Response in Opposition to 198 Motion for Protective Order. -- Motion referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 12/04/2012)
221 MOTION for an Extension of Time to file Objection and Supporting Memorandum to Plaintiffs' 205 Motion to Compel Access to the Named Children by Next Friends and Counsel by All Defendants. Responses due by 12/24/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Baum, Brenda) (Entered: 12/05/2012)
222 MOTION for an Extension of Time to file Objection and Supporting Memorandum to Plaintiffs' 207 Second Motion to Have the Named Children Evaluated by Plaintiffs' Retained Psychologist by All Defendants. Responses due by 12/24/2012 (Attachments: # 1 Supporting Memorandum)(Baum, Brenda) (Entered: 12/05/2012)
TEXT ORDER granting 221 Motion for Extension of Time to respond to 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel. -- Reset Deadline: Response due by 12/21/2012. So Ordered by Chief Judge Mary M. Lisi on 12/6/2012. (Duhamel, John) (Entered: 12/06/2012)
TEXT ORDER granting 222 Motion for Extension of Time to respond to 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist. -- Reset Deadline: Response due by 12/21/2012. So

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Ordered by Chief Judge Mary M. Lisi on 12/6/2012. (Duhamel, John) (Entered: 12/06/2012)
223 STIPULATION by Kevin J. Aucoin, Danny B., Jared C., Lincoln D. Chafee, Steven M. Costantino, Tracy L., Cassie M., Terrence T.. (Kelly, Neil) (Entered: 12/06/2012)
224 REPLY to Response to Motion re 219 Response in Opposition to re 198 MOTION for Protective Order Motion, filed by All Defendants. (Kelly, Neil) (Main Document 224 replaced on 12/13/2012 - Corrected document provided by Attorney Kelly's office. ) (Duhamel, John). (Entered: 12/13/2012)
225 Second MOTION to Compel Defendant's Second Set of Interrogatories by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/31/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-C)(Kelly, Neil) (Entered: 12/14/2012)
226 Second MOTION to Compel Defendant's Second Set of Interrogatories by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/31/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-C)(Kelly, Neil) (Entered: 12/14/2012)
227 Second MOTION to Compel Defendant's Second Set of Interrogatories by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/31/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-C)(Kelly, Neil) (Entered: 12/14/2012)
228 Second MOTION to Compel Defendant's Second Set of Interrogatories by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/31/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-C)(Kelly, Neil) (Entered: 12/14/2012)
229 Second MOTION to Compel Defendant's Second Set of Interrogatories by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 12/31/2012 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-C)(Kelly, Neil) (Entered: 12/14/2012)
230 MEMORANDUM AND ORDER granting in part and denying in part 177 Motion for Protective Order. Defendants' Motion for Protective Order (Document No. 177) is GRANTED and the scope of discovery is limited as provided herein. Further, in light of this ruling, Defendants' additional request for document review cost shifting is DENIED as unwarranted. In addition, Defendants have not made a sufficient showing to warrant a blanket protective order prohibiting the production of any electronically stored information ("ESI"). If Defendants have a particular issue regarding the scope of a request for ESI, accessibility of ESI, or undue burden or cost in production of ESI, they may seek further relief under Rule 26(c) after conferring with Plaintiff's counsel in a good faith

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effort to resolve the dispute without the necessity of court action. So Ordered by Magistrate Judge Lincoln D. Almond on 12/17/2012. (Noel, Jeannine) (Entered: 12/17/2012)
231 Assented MOTION for an Extension of Time to File Response/Reply as to 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist by All Defendants. Responses due by 1/3/2013 (Baum, Brenda) (Entered: 12/17/2012)
TEXT ORDER granting 231 Motion for Extension of Time to File Response re 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist -- Reset Deadline: Defendants' Response due by 1/3/2013. So Ordered by Chief Judge Mary M. Lisi on 12/18/2012. (Duhamel, John) (Entered: 12/18/2012)
232 Assented MOTION for an Extension of Time to File Response/Reply as to 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel by All Defendants. Responses due by 1/4/2013 (Baum, Brenda) (Entered: 12/18/2012)
TEXT ORDER granting 232 Motion for Extension of Time to File Response re 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel -- Reset Deadline: Defendants' response due by 1/3/2013. So Ordered by Chief Judge Mary M. Lisi on 12/19/2012. (Duhamel, John) (Entered: 12/19/2012)
233 MOTION to Compel More Responsive Answers to Interrogatories with supporting memo by All Defendants. Responses due by 1/7/2013 (Kelly, Neil) (Entered: 12/20/2012)
234 MOTION to Compel More Responsive Answers to Interrogatories with supporting memo by All Defendants. Responses due by 1/7/2013 (Kelly, Neil) (Entered: 12/20/2012)
235 MOTION to Compel More Responsive Answers to Interrogatories with supporting memo by All Defendants. Responses due by 1/7/2013 (Kelly, Neil) (Entered: 12/20/2012)
236 MOTION to Compel More Responsive Answers to Interrogatories with supporting memo by All Defendants. Responses due by 1/7/2013 (Kelly, Neil) (Entered: 12/20/2012)
237 MOTION to Compel More Responsive Answers to Interrogatories with supporting memo by All Defendants. Responses due by 1/7/2013 (Kelly, Neil) (Entered: 12/20/2012)
238 MOTION for an Extension of Time to File Response/Reply to Plaintiffs' Third Motion to Compel Discovery by All Defendants. Responses due by 1/7/2013 (Baum, Brenda) (Entered: 12/20/2012)

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239 Assented MOTION for an Extension of Time to File Response/Reply as to 233 Final MOTION to Compel More Responsive Answers to Interrogatories , 235 MOTION to Compel More Responsive Answers to Interrogatories , 234 MOTION to Compel More Responsive Answers to Interrogatories , 237 MOTION to Compel More Responsive Answers to Interrogatories , 236 MOTION to Compel More Responsive Answers to Interrogatories by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 1/7/2013 (Ingber, Miriam) (Entered: 12/20/2012)
TEXT ORDER granting 238 Defendants' Motion to Extend Time to January 9, 2013 to File Their Objection to Plaintiffs' Third Motion to Compel Discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 12/21/2012. (Noel, Jeannine) (Entered: 12/21/2012)
MOTIONS REFERRED: 238 MOTION for an Extension of Time to File Response to Plaintiffs' 193 Third Motion to Compel Discovery; 239 Assented MOTION for an Extension of Time to File Response to 233 , 234 , 235 , 236 , 237 Motions to Compel More Responsive Answers to Interrogatories. -- Motions referred to Magistrate Judge Lincoln D. Almond for determination. (Duhamel, John) (Entered: 12/21/2012)
TEXT ORDER granting 239 Plaintiffs' Assented Motion to Extend Time to January 11, 2013 to File Their Objections to Defendants' Motions to Compel. So Ordered by Magistrate Judge Lincoln D. Almond on 12/21/2012. (Noel, Jeannine) (Entered: 12/21/2012)
240 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Danny B., Jared C., Tracy L., Cassie M., Terrence T. re 230 Order on Motion for Protective Order. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A)(Ingber, Miriam) (Entered: 12/31/2012)
241 RESPONSE in Opposition re 228 Second MOTION to Compel Defendant's Second Set of Interrogatories , 226 Second MOTION to Compel Defendant's Second Set of Interrogatories , 225 Second MOTION to Compel Defendant's Second Set of Interrogatories , 229 Second MOTION to Compel Defendant's Second Set of Interrogatories , 227 Second MOTION to Compel Defendant's Second Set of Interrogatories filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F)(Ingber, Miriam) (Entered: 12/31/2012)
242 MOTION to Seal Document: Exhibit B in Support of 241 Response in Opposition to 225 , 226 , 227 , 228 , 229 motions to compel by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 01/03/2013)

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MOTIONS REFERRED: 225 , 226 , 227 , 228 , 229 Second MOTIONS to Compel Defendants' Second Set of Interrogatories , 242 MOTION to Seal Exhibit B re 241 Response in Opposition to 225 , 226 , 227 , 228 , 229 Second MOTIONS o Compel Defendants' Second Set of Interrogatories. Motions referred to Magistrate Judge Lincoln D. Almond for determination. -- (Any replies as to said Second Motions to Compel are due by January 10, 2013.) (Duhamel, John) (Entered: 01/03/2013)
REFERRED TO CHAMBERS: 240 Appeal of Magistrate Judge Decision to District Court re 230 Memorandum and Order granting 177 Motion for Protective Order, REFERRED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 01/03/2013)
243 RESPONSE in Opposition re 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel With Suppporting Memo filed by All Defendants. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(Baum, Brenda) (Entered: 01/03/2013)
244 MOTION to Seal Documents: Exhibits A, G, H, I, J, K, L, M, N, O in support of 243 Response in Opposition to 205 Motion to Compel Access to Named Plaintiffs; filed by All Defendants. (Duhamel, John) (Entered: 01/03/2013)
Motions Forwarded to Chambers: 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel; 244 MOTION to Seal Exhibits A, G, H, I, J, K, L, M, N, O in support of 243 Response in Opposition to 205 Motion to Compel Acess..., FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 01/03/2013)
Set Reply Deadline: Any reply to the 243 Response in Opposition to the 205 "Motion to Compel Access" is due by 1/14/2013. (Duhamel, John) (Entered: 01/03/2013)
245 RESPONSE in Opposition re 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist with supporting memo filed by All Defendants. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Supplement, # 4 Supplement, # 5 Exhibit B)(Kelly, Neil) (Entered: 01/03/2013)
Motion Forwarded to Chambers: 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist FORWARDED to Chambers of Chief Judge Lisi. -- (Any reply to the 245 Response in Opposition is due by 1/14/2013.) (Duhamel, John) (Entered: 01/03/2013)

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246 MOTION to Supplement Defendant's Memorandum in support of Defendants' 245 Response in Opposition to Plaintiffs' 207 Second Motion to be Evaluated by Plaintiffs' Retained Psychologist . (Attachments: # 1 Exhibit C: Affidavit of Lois O. Condie, PhD.)(Kelly, Neil) (Entered: 01/04/2013)
247 MEMORANDUM AND ORDER granting 198 Motion for Protective Order. Defendants have shown good cause under Rule 26(c) for their request for a protective order postponing this noticed deposition until after the dispositive motions on the named Plaintiffs' substantive claims are determined by the Court, and such protective order is GRANTED. So Ordered by Magistrate Judge Lincoln D. Almond on 1/4/2013. (Noel, Jeannine) (Entered: 01/04/2013)
TEXT ORDER granting 213 Motion to Seal Document 211 Response in Opposition to Motion, Exhibits D and G; granting 220 Motion to Seal Document 219 Response in Opposition to Motion, Exhibits I, L, M, N, O, P, Q, R, S; granting 242 Motion to Seal Document 241 Response in Opposition to Motion, Exhibit B. So Ordered by Magistrate Judge Lincoln D. Almond on 1/4/2013. (Noel, Jeannine) (Entered: 01/04/2013)
248 Sealed Documents placed in vault; Lockup #6 (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 sealed docs part 2, # 2 sealed docs part 3, # 3 sealed docs part 4, # 4 sealed docs part 5, # 5 sealed docs part 6) (Capraro, Dona). (Entered: 01/07/2013)
249 Sealed Documents placed in vault; Lockup #6 (Duhamel, John) (Capraro, Dona). (Entered: 01/07/2013)
250 Sealed Document placed in vault; Lockup #6 (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 sealed docs part 2 of 5, # 2 sealed docs part 3 of 5, # 3 sealed docs part 4 of 5, # 4 sealed docs part 5 of 5) (Capraro, Dona). (Entered: 01/07/2013)
Motions Forwarded to Chambers: 209 MOTION to Seal Document: Exhibit C in support of 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel by Danny B., Jared C., Tracy L., Cassie M., Terrence T.; 210 MOTION to Seal Document: Exhibit 1 in support of 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist by Danny B., Jared C., Tracy L., Cassie M., Terrence T.; FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 01/07/2013)
251 Assented MOTION for an Extension of Time to File Reply as to 243 Response in Opposition to Motion To Compel Access to the Named Plaintiffs by their Next Friends and Counsel by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 1/25/2013 (Ingber, Miriam) (Entered: 01/08/2013)

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252 Assented MOTION for an Extension of Time to File Reply as to 245 Response in Opposition to Motion, To Be Evaluated By Plaintiffs' Retained Psychologist by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 1/25/2013 (Ingber, Miriam) (Entered: 01/08/2013)
Motions Forwarded to Chambers: 252 Assented MOTION for an Extension of Time to File Reply as to 245 Response in Opposition to Motion To Be Evaluated By Plaintiffs' Retained Psychologist; 251 Assented MOTION for an Extension of Time to File Reply as to 243 Response in Opposition to Motion To Compel Access to the Named Plaintiffs by their Next Friends and Counsel FORWARDED to Chambers of Chief Judge Lisi. (Duhamel, John) (Entered: 01/09/2013)
253 DISCOVERY MANAGEMENT ORDER. So Ordered by Magistrate Judge Lincoln D. Almond on 1/8/2013. (Noel, Jeannine) (Entered: 01/09/2013)
TEXT ORDER granting 251 Motion for Extension of Time to File Reply as to 243 Response in Opposition to Motion To Compel Access to the Named Plaintiffs by their Next Friends and Counsel. -- THE REPLY IS DUE UP TO AND INCLUDING SEVEN DAYS FOLLOWING THE THE DEPOSITION OF ANTHONY FRANCO. So Ordered by Chief Judge Mary M. Lisi on 1/9/2013. (Duhamel, John) (Entered: 01/09/2013)
TEXT ORDER granting 252 Motion for Extension of Time to File Reply as to 245 Response in Opposition to Motion To Be Evaluated By Plaintiffs' Retained Psychologist. -- THE REPLY IS DUE UP TO AND INCLUDING SEVEN DAYS FOLLOWING THE THE COMPLETION OF DEPOSITIONS OF DRS. TINA R. ADAMS AND LOIS O. CONDIE. So Ordered by Chief Judge Mary M. Lisi on 1/9/2013. (Duhamel, John) (Entered: 01/09/2013)
254 RESPONSE in Opposition re 193 Third MOTION to Compel Discovery with supporting memo filed by All Defendants. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A)(Baum, Brenda) (Entered: 01/09/2013)
255 REPLY MEMORANDUM: RESPONSE in Support re 228 Second MOTION to Compel Defendant's Second Set of Interrogatories , 226 Second MOTION to Compel Defendant's Second Set of Interrogatories , 225 Second MOTION to Compel Defendant's Second Set of Interrogatories , 229 Second MOTION to Compel Defendant's Second Set of Interrogatories , 227 Second MOTION to Compel Defendant's Second Set of Interrogatories filed by All Defendants. (Attachments: # 1 Exhibit D)(Kelly, Neil) (Entered: 01/10/2013)

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256 RESPONSE in Opposition re 235 MOTION to Compel More Responsive Answers to Interrogatories , 236 MOTION to Compel More Responsive Answers to Interrogatories , 233 Final MOTION to Compel More Responsive Answers to Interrogatories , 234 MOTION to Compel More Responsive Answers to Interrogatories , 237 MOTION to Compel More Responsive Answers to Interrogatories filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit K, # 10 Exhibit L, # 11 Exhibit M)(Ingber, Miriam) (Entered: 01/11/2013)
257 WITHDRAWAL of : 205 MOTION to Compel Access to the Named Plaintiffs by Their Next Friends and Counsel by Danny B., Jared C., Tracy L., Cassie M., Terrence T. . (Dembrow, Adam) (Entered: 01/14/2013)
258 Assented MOTION for an Extension of Time to File Response/Reply as to 240 Appeal of Magistrate Judge Decision to District Court by All Defendants. Responses due by 1/31/2013 (Baum, Brenda) (Entered: 01/14/2013)
259 MOTION to Seal Documents: Exhibits B and J in support of 256 Response in Opposition to 233 , 234 , 235 , 236 , 237 Motions to Compel by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 01/15/2013)
260 RESPONSE IN OPPOSITION by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino re 240 Appeal of Magistrate Judge Decision to District Court . (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 01/15/2013)
TEXT ORDER granting 258 Motion for Extension of Time to 1/15/2013 to File Response to 240 Appeal of 230 Memorandum and Order. So Ordered by Chief Judge Mary M. Lisi on 1/16/2013. (Duhamel, John) (Entered: 01/16/2013)
261 Joint MOTION for an Extension of Time to File Reply as to 254 Response in Opposition to Motion, 256 Response in Opposition to Motion by All Parties. Responses due by 2/4/2013 (Ingber, Miriam) (Entered: 01/18/2013)
262 Joint MOTION for an Extension of Time to Submit Discovery Status Reports re 253 Discovery Management Order by All Defendants. Responses due by 2/4/2013 (Kelly, Neil) (Entered: 01/18/2013)
263 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Danny B., Jared C., Tracy L., Cassie M., Terrence T. re 247 Order on Motion for Protective Order, (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D,

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# 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Ingber, Miriam) (Entered: 01/18/2013)
Set Response Deadline re : 263 Appeal of Magistrate Decision re 247 Order granting Motion for Protective Order. Response due by 2/4/2013 (Duhamel, John) (Entered: 01/22/2013)
TEXT ORDER granting 261 Motion for Extension of Time to File Replies re: 254 Response in Opposition to 193 Third MOTION to Compel Discovery, 256 Response in Opposition to 233 , 234 , 235 , 236 , 237 Motions to Compel More Responsive Answers to Interrogatories. -- REPLIES DUE BY FEBRUARY 1, 2013. So Ordered by Chief Judge Mary M. Lisi on 1/22/2013. (Duhamel, John) (Entered: 01/22/2013)
TEXT ORDER granting 262 Joint MOTION for an Extension of Time up to and including February 1, 2013 to Submit Discovery Status Reports. So Ordered by Magistrate Judge Lincoln D. Almond on 1/22/2013. (Noel, Jeannine) (Entered: 01/22/2013)
264 NOTICE of WITHDRAWAL of 246 MOTION to Supplement Defendant's Memorandum in support of Defendants' 245 Response in Opposition to Plaintiffs' 207 Second Motion to be Evaluated by Plaintiffs' Retained Psychologist by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino (Kelly, Neil) Modified on 1/30/2013 to create document links. (Duhamel, John). (Entered: 01/30/2013)
265 REPLY MEMORANDUM re 260 Response in Opposition to Plaintiffs' Appeal of Magistrate Judge Almond's Memorandum and Order. (Ingber, Miriam) (Entered: 02/01/2013)
266 REPLY MEMORANDUM re 256 Response in Opposition to Motions to Compel filed by All Defendants. (Kelly, Neil) (Entered: 02/01/2013)
267 STATUS REPORT by All Defendants. (Baum, Brenda) (Entered: 02/01/2013)
268 STATUS REPORT by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Dembrow, Adam) (Entered: 02/01/2013)
269 REPLY to Response to Motion re 254 Response in Opposition to Motion To Compel Discovery filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H)(Ingber, Miriam) (Entered: 02/01/2013)
270 RESPONSE IN OPPOSITION by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino re 263 Appeal of Magistrate Judge Decision to District Court, . (Kelly, Neil) (Entered: 02/04/2013)

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271 MOTION to Seal Document: Exhibit D in support of 269 Reply to 254 Response to 193 Third Motion to Compel Discovery, by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 02/05/2013)
TEXT ORDER granting 271 MOTION to Seal Document: Exhibit D in support of 269 Reply to 254 Response to 193 Third Motion to Compel Discovery, by Danny B., Jared C., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 2/6/2013. (Noel, Jeannine) (Entered: 02/06/2013)
272 Sealed Document placed in vault; lockup #6 (Duhamel, John) (Capraro, Dona). (Entered: 02/06/2013)
273 MOTION for Leave to File Supplemental Discovery Status Report by All Defendants. Responses due by 2/25/2013 (Attachments: # 1 Exhibit A)(Baum, Brenda) (Entered: 02/07/2013)
274 STATUS REPORT Supplemental Discovery Status Report by All Defendants. (Baum, Brenda) (Entered: 02/07/2013)
275 RESPONSE in Opposition re 273 MOTION for Leave to File Supplemental Discovery Status Report filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ingber, Miriam) (Entered: 02/08/2013)
TEXT ORDER granting 273 Motion to Supplement Defendants' Discovery Status Report. So Ordered by Magistrate Judge Lincoln D. Almond on 2/11/2013. (Noel, Jeannine) (Entered: 02/11/2013)
276 Joint MOTION for an Extension of Time of Fact Discovery Deadline and Rule 16 Conference by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. Responses due by 2/28/2013 (Kelly, Neil) (Entered: 02/11/2013)
277 REPLY to Response to Motion re 245 Response in Opposition to Motion, To Be Evaluated By Plaintiffs' Retained Psychologist filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ingber, Miriam) (Entered: 02/11/2013)
278 ORDER denying and dismissing Plaintiffs' 240 Appeal of Magistrate Judge Decision to District Court re the Magistrate's 230 Memorandum and Order granting in part and denying in part Defendants' 177 Motion for Protective Order. So Ordered by Chief Judge Mary M. Lisi on 2/12/2013. (Duhamel, John) (Entered: 02/12/2013)
279 MOTION for Leave to File Supplemental Discovery Status Report by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 3/1/2013 (Attachments: # 1 Exhibit A)(Ingber, Miriam) (Entered: 02/12/2013)

02/14/2013 02/15/2013 02/15/2013 02/15/2013 02/19/2013
02/20/2013 02/21/2013 02/22/2013
02/26/2013 02/26/2013 02/26/2013

TEXT ORDER granting 279 Plaintiff's Motion for Leave to File Supplemental Discovery Status Report. So Ordered by Magistrate Judge Lincoln D. Almond on 2/15/2013. (Noel, Jeannine) (Entered: 02/15/2013)
280 STATUS REPORT Supplemental Discovery Status Report by All Plaintiffs. (Ingber, Miriam) (Entered: 02/15/2013)
281 Joint MOTION for an Extension of Time to File Fact Discovery by All Defendants. Responses due by 3/4/2013 (Kelly, Neil) (Entered: 02/15/2013)
282 MOTION for Leave to File Sur Reply by All Defendants. Responses due by 3/4/2013 (Attachments: # 1 Exhibit: SUR-REPLY)(Kelly, Neil) (Entered: 02/15/2013)
TEXT ORDER granting Defendants' 282 Motion for Leave to File SurReply in support of their objection to Plaintiffs' Second Motion to be Evaluated by Plaintiffs' Retained Psychologist. So Ordered by Chief Judge Mary M. Lisi on 2/19/2013. (Duhamel, John) (Entered: 02/19/2013)
283 SUR-REPLY by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino re 245 Response in Opposition to 207 Second Motion To Be Evaluated By Plaintiffs' Retained Psychologist, . (Kelly, Neil) (Entered: 02/20/2013)
284 REPLY MEMORANDUM re 270 Response in Opposition to Plaintiffs' Appeal of Magistrate Judge Almond's Memorandum & Order. (Attachments: # 1 Exhibit C)(Ingber, Miriam) (Entered: 02/21/2013)
285 MOTION for Leave to File Sur-Response in Further Support of Plaintiffs Second Motion To Be Evaluated By Plaintiffs Retained Psychologist by Danny B., Jared C., Tracy L., Cassie M., Terrence T. Responses due by 3/11/2013 (Attachments: # 1 Exhibit A: Sur-Response)(Ingber, Miriam) (Entered: 02/22/2013)
TEXT ORDER granting 285 Motion for Leave to File Sur-Response in Further Support of Plaintiffs Second Motion To Be Evaluated By Plaintiffs Retained Psychologist. So Ordered by Chief Judge Mary M. Lisi on 2/26/2013. (Duhamel, John) (Entered: 02/26/2013)
286 MOTION to Seal Documents: Exhibits A and B in support of 284 Reply Memorandum re 270 Response in Opposition to 263 Appeal of Magistrates' 247 Memorandum and Order; by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 02/26/2013)
287 Second MOTION to Certify Class and Appoint Class Counsel and Rule 23(c)(1)(A) Request for Timely Determination WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T..

02/26/2013
02/27/2013 02/27/2013 02/27/2013 02/27/2013 02/27/2013 02/28/2013 02/28/2013

Responses due by 3/15/2013 (Attachments: # 1 Supporting Memorandum)(Lowry, Marcia Robinson) (Entered: 02/26/2013)
288 DECLARATION of MARCIA ROBINSON LOWRYre 287 Second MOTION to Certify Class and Appoint Class Counsel and Rule 23(c)(1)(A) Request for Timely Determination by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22, # 22 Exhibit 23, # 23 Exhibit 24)(Lowry, Marcia Robinson) (Entered: 02/26/2013)
289 SUR-RESPONSE in Support re 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist Plaintiffs' Sur-Response filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 02/27/2013)
NOTICE of Hearing: Telephone Conference set for MONDAY, 3/4/2013 at 11:00 AM in Chief Judge Lisi's Chambers. Counsel of record have been provided (via e-mail) with call-in instructions.(Duhamel, John) (Entered: 02/27/2013)
TEXT ORDER denying without prejudice to re-filing in compliance with Local Rule Gen 102 (b)(3) 286 Motion to Seal Exhibits A and B in support of 284 Reply Memorandum re 270 Response in Opposition to 263 Appeal of Magistrates' 247 Memorandum and Order. So Ordered by Chief Judge Mary M. Lisi on 2/27/2013. (Duhamel, John) (Entered: 02/27/2013)
290 EXHIBIT IN SUPPORT (Redacted) by Danny B., Jared C., Tracy L., Cassie M., Terrence T. in support of 284 Reply Memorandum Exhibit A. (Ingber, Miriam) (Entered: 02/27/2013)
291 EXHIBIT IN SUPPORT by Danny B., Jared C., Tracy L., Cassie M., Terrence T. in support of 284 Reply Memorandum Exhibit B. (Ingber, Miriam) (Entered: 02/27/2013)
292 Second/Renewed MOTION to Seal Document: Exhibit A in support of 284 Reply Memorandum re 270 Response in Opposition to 263 Appeal of Magistrates' 247 Memorandum and Order by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 02/28/2013)
293 MOTION to Seal Document: Exhibit 18 in support of 288 Declaration of Marcia Robinson Lowry re 287 Second Motion to Certify Class; by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 02/28/2013)

02/28/2013 02/28/2013 03/01/2013
03/01/2013
03/01/2013 03/01/2013 03/04/2013 03/04/2013

TEXT ORDER granting 259 MOTION to Seal Document 256 Response in Opposition to Motion, Exhibits B and J. So Ordered by Magistrate Judge Lincoln D. Almond on 2/28/2013. (Noel, Jeannine) (Entered: 02/28/2013)
294 Sealed Documents placed in vault; Lockup #6. (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 sealed docs part 2 of 5, # 2 sealed doc part 3 of 5, # 3 sealed docs part 4 of 5, # 4 sealed docs part 5 of 5) (Capraro, Dona). (Entered: 02/28/2013)
295 MEMORANDUM AND ORDER - Plaintiffs' First and Third Motions to Compel (Document Nos. 166 and 193) are DENIED without prejudice to renewal as to those discovery requests not withdrawn or resolved, and after conferring with Defendants as required by Fed. R. Civ. P. 37(a)(1). 166 Motion to Compel; 193 Motion to Compel. So Ordered by Magistrate Judge Lincoln D. Almond on 3/1/2013. (Noel, Jeannine) (Entered: 03/01/2013)
296 MEMORANDUM AND ORDER denying 225 Motion to Compel; denying 226 Motion to Compel; denying 227 Motion to Compel; denying 228 Motion to Compel; denying 229 Motion to Compel; denying 233 Motion to Compel; denying 234 Motion to Compel; denying 235 Motion to Compel; denying 236 Motion to Compel; denying 237 Motion to Compel; denying 178 Motion to Compel; granting in part and denying in part 182 Motion to Compel. So Ordered by Magistrate Judge Lincoln D. Almond on 3/1/2013. (Noel, Jeannine) (Entered: 03/01/2013)
297 MOTION for an Extension of Time of Fact Discovery Deadline by All Defendants. Responses due by 3/18/2013 (Kelly, Neil) (Entered: 03/01/2013)
298 MEMORANDUM AND ORDER granting in part 276 Motion for Extension of Time ; granting in part 281 Motion for Extension of Time ; Set/Reset Deadlines: ( Factual Discovery due by 3/31/2013.) So Ordered by Magistrate Judge Lincoln D. Almond on 3/1/2013. (Noel, Jeannine) (Entered: 03/01/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 3/4/2013. Spokepersons for counsel of record participating: Marcia Robinson Lowry on behlaf of Plaintiffs; Neil Kelly on behalf of Defendants. (Court Reporter Karen Wischnowsky.) (Duhamel, John) (Entered: 03/04/2013)
TEXT ORDER: Pursuant to the telephone conference held with counsel on 3/4/2013, activity in this case is stayed for a period of thirty (30) days. So Ordered by Chief Judge Mary M. Lisi on 3/4/2013. (Duhamel, John) (Entered: 03/04/2013)

03/04/2013 03/04/2013 03/05/2013 03/06/2013
03/13/2013 03/15/2013 03/18/2013 03/20/2013 03/25/2013 03/25/2013

299 TRANSCRIPT REQUEST for proceedings held on 3/4/2013 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 03/04/2013)
300 SUBPOENA Returned Executed as to KOR Neighborhood Health Plan . (Kelly, Neil) (Entered: 03/04/2013)
301 NOTICE: Response to March 14, 2013 Text Order entering a 30-day stay of activity in this case by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Ingber, Miriam) (Entered: 03/05/2013)
302 TRANSCRIPT of Telephone Conference held on March 4, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-351-8311. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 3/27/2013. Redacted Transcript Deadline set for 4/8/2013. Release of Transcript Restriction set for 6/4/2013. (Wischnowsky, Karen) (Entered: 03/06/2013)
NOTICE of Hearing: Telephone Conference for Plaintiff's Counsel only set for 3/18/2013 02:30 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call.(Noel, Jeannine) (Entered: 03/13/2013)
NOTICE of Hearing: Telephone Conference for Defense Counsel Only set for 3/20/2013 03:30 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call.(Noel, Jeannine) (Entered: 03/15/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 3/18/2013. (Chambers at 2:35.) (Saucier, Martha) (Entered: 03/18/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 3/20/2013. (Noel, Jeannine) (Entered: 03/20/2013)
TEXT ORDER lifting the 30-day stay that was previously imposed pursuant to the Text Order entered on 3/4/2013. So Ordered by Chief Judge Mary M. Lisi on 3/25/2013. (Duhamel, John) (Entered: 03/25/2013)
303 Fourth MOTION to Compel Discovery WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 4/11/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Ingber, Miriam) (Entered: 03/25/2013)

03/27/2013 03/27/2013
03/27/2013 03/27/2013
03/27/2013 03/28/2013 03/28/2013
04/08/2013 04/15/2013 04/16/2013
04/18/2013

Reset Response Deadline re 287 Second Motion to Certify Class: Responses due by April 5, 2013. (Duhamel, John) (Entered: 03/27/2013)
Reset Response Deadline re 297 Motion for Extension of Fact Discovery Deadline: Responses due by April 9, 2013. (Duhamel, John) Modified on 3/28/2013 to note that this dealine is CANCELLED. USMJ Almond issued a Memorandum and Order at 305 re the 297 motion on 3/27/2013.) (Duhamel, John). (Entered: 03/27/2013)
304 MOTION to Seal Document: Exhibit "E" re 303 Fourth MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 03/27/2013)
TEXT ORDER granting 304 MOTION to Seal Document: Exhibit "E" re 303 Fourth MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 3/27/2013. (Noel, Jeannine) (Entered: 03/27/2013)
305 MEMORANDUM AND ORDER granting 297 Defendants' Motion for Extension of Fact Discovery Deadline. Set/Reset Deadlines: ( Factual Discovery due by 4/30/2013.) So Ordered by Magistrate Judge Lincoln D. Almond on 3/27/2013. (Noel, Jeannine) (Entered: 03/27/2013)
306 Sealed Document placed in vault, lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 03/28/2013)
RESET RESPONSE DEADLINE re 287 Second Motion to Certify Class. Any response to the 287 motion is now due 14 (fourteen) days from any decision on a dispositive motion. (Note: The instant deadline cancels the April 5, 2013 deadline previously set on 3/27/2013.) (Duhamel, John) (Entered: 03/28/2013)
307 RESPONSE in Opposition re 303 Fourth MOTION to Compel Discovery filed by All Defendants. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B)(Kelly, Neil) (Entered: 04/08/2013)
308 Joint MOTION for Scheduling Order by All Defendants. Responses due by 5/2/2013 (Kelly, Neil) (Entered: 04/15/2013)
Remark: Miscellaneous Case docketed in USCA-Boston on 4/11/2013: Petition for Permission to Appeal Pursuant to Fed. R. Civ. P. 23(f) or in the alternative, Petition For Writ of Mandamus filed by Petitioners Danny B., Jared C., Tracy L., Cassie M. and Terrence T. -- CCA# 138014 (Duhamel, John) (Entered: 04/16/2013)
309 REPLY to Response to Motion re 307 Response in Opposition to Motion To Compel Discovery filed by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 04/18/2013)

04/25/2013 04/26/2013
04/29/2013 05/03/2013 05/07/2013 05/07/2013 05/07/2013 05/08/2013
05/10/2013 05/10/2013 05/10/2013

NOTICE of Telephonic Hearing on Motion 303 Fourth MOTION to Compel Discovery : Telephonic Motion Hearing set for 5/10/2013 10:00 AM before Magistrate Judge Lincoln D. Almond. Parties will receive call in information via email. (Noel, Jeannine) (Entered: 04/25/2013)
310 Fifth MOTION to Compel Discovery WITH SUPPORTING MEMO by Danny B., Jared C., Tracy L., Cassie M., Terrence T.. Responses due by 5/13/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T)(Dembrow, Adam) (Entered: 04/26/2013)
311 MOTION to Seal Documents: Unredacted Exhibits "J" and "T" re 310 Fifth MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 04/29/2013)
312 STIPULATION dismissing Jared C from the Second Amended Complaint by All Defendants. (Kelly, Neil) (Entered: 05/03/2013)
ORDER entering 312 Stipulated Order dismissing Plaintiff Jared C. from the Amended Complaint. So Ordered by Chief Judge Mary M. Lisi on 5/7/2013. (Duhamel, John) (Entered: 05/07/2013)
313 MOTION to Seal Document by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 05/07/2013)
314 First MOTION for Discovery: for Permission to Obtain Copies of the Medical, Mental Health and Educational Records of the Plaintiff Children by All Defendants. Responses due by 5/24/2013 (Attachments: # 1 Supporting Memorandum)(Baum, Brenda) (Entered: 05/07/2013)
315 RESPONSE in Opposition re 314 First MOTION for Discovery for Permission to Obtain Copies of the Medical, Mental Health and Educational Records of the Plaintiff Children filed by Danny B., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Ingber, Miriam) (Entered: 05/08/2013)
TEXT ORDER granting 313 Motion to Seal Document. So Ordered by Magistrate Judge Lincoln D. Almond on 5/10/2013. (Noel, Jeannine) (Entered: 05/10/2013)
316 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 05/10/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephonic Motion Hearing held on 5/10/2013 re 303 Fourth

05/10/2013 05/10/2013 05/10/2013 05/13/2013 05/15/2013
05/15/2013
05/20/2013 05/21/2013 05/23/2013

MOTION to Compel Discovery filed by Tracy L., Danny B., Terrence T., Jared C., Cassie M. (Ingber, Kelley, Baum, Dembrow, Dineen) Argument; Court takes matter under advisement (Courtroom A at 10:05 am.) (Noel, Jeannine) (Entered: 05/10/2013)
317 TRANSCRIPT REQUEST for proceedings held on 5/10/2013 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Entered: 05/10/2013)
318 RESPONSE in Opposition re 310 Fifth MOTION to Compel Discovery With Supporting Memo filed by All Defendants. (Attachments: # 1 Exhibit B, # 2 Exhibit H)(Baum, Brenda) (Entered: 05/10/2013)
319 MOTION to Seal Documents: Exhibits A, C, D, E, F, and G re 318 Response in Opposition to 310 Fifth Motion to Compel Discovery, by All Defendants. (Duhamel, John) (Entered: 05/10/2013)
Remark: Transcript Request 317 , CD and docket forwarded to Joseph Fontes, Court Reporter, via regular mail. (Noel, Jeannine) (Entered: 05/13/2013)
320 REPLY MEMORANDUM in support re 314 First MOTION for Discovery for Permission to Obtain Copies of the Medical, Mental Health and Educational Records of the Plaintiff Children filed by All Defendants. (Attachments: # 1 Exhibit G)(Baum, Brenda) (Entered: 05/15/2013)
321 MOTION to Seal Documents: Plaintiffs' Answers to Interrogatories and a letter that contain confidential information of the Plaintiff Children's placements, medical providers, mental health providers, and educational institutions by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 05/15/2013)
322 REPLY to Response to Motion re 318 Response in Opposition to 310 Fifth Motion To Compel Discovery filed by Danny B., Tracy L., Cassie M., Terrence T. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dembrow, Adam) (Entered: 05/20/2013)
323 MOTION to Seal Document: Exhibit "A" re 322 Reply to Response to 310 Fifth Motion to Compel Discovery by Danny B., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 sealed docs) (Capraro, Dona). (Entered: 05/21/2013)
TEXT ORDER granting 323 MOTION to Seal Document: Exhibit "A" re 322 Reply to Response to 310 Fifth Motion to Compel Discovery by Danny B., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 5/23/2013. (Noel, Jeannine) (Entered: 05/23/2013)

05/23/2013 05/23/2013 05/24/2013
05/24/2013
05/24/2013
05/24/2013 05/24/2013 05/24/2013 05/24/2013

324 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 05/23/2013)
325 Joint SUPPLEMENTAL MOTION for Scheduling Order re 305 Memorandum and Order by All Defendants. Responses due by 6/10/2013 (Baum, Brenda) (Entered: 05/23/2013)
TEXT ORDER granting 311 MOTION to Seal Documents: Unredacted Exhibits "J" and "T" re 310 Fifth MOTION to Compel Discovery by Danny B., Jared C., Tracy L., Cassie M., Terrence T. So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
TEXT ORDER granting 319 MOTION to Seal Documents: Exhibits A, C, D, E, F, and G re 318 Response in Opposition to 310 Fifth Motion to Compel Discovery, by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
TEXT ORDER granting 325 Joint SUPPLEMENTAL MOTION for Scheduling Order re 305 Memorandum and Order by All Defendants; Set/Reset Deadlines: ( Factual Discovery due by 5/31/2013. Plaintiffs' Supplement due by 6/21/2013. Defendants' Supplement due by 6/28/2013. Plaintiffs' Expert Disclosures due by 6/28/2013. Expert Discovery Commences on 6/28/2013. Defendants' Expert Disclosures due by 8/16/2013. Expert Discovery due by 9/27/2013. Dispositive Motions due by 10/25/2013.) So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
326 MEMORANDUM AND ORDER granting 303 Plaintiffs' Fourth Motion to Compel Discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
327 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 05/24/2013)
328 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Additional attachment(s) added on 8/4/2016: # 1 sealed docs part 2 of 2) (Capraro, Dona). (Entered: 05/24/2013)
TEXT ORDER DENIED as unsupported and untimely. Defendants have provided no legal authority to support the issuance of a blanket order authorizing the wide-ranging third-party discovery requested. More importantly, Defendants have offered no explanation as to why such extensive discovery was not sought earlier in the discovery process and no reasonable assurance that the gathering and review of such documents at this late stage of discovery would not further delay this case. Finally, the request was made shortly before the close of discovery and thus is not in accordance with Local Rule Cv 26(c) which generally requires that

05/24/2013 05/24/2013
05/24/2013 06/03/2013
06/03/2013 06/13/2013 06/17/2013 06/18/2013

"pretrial discovery must be completed by the discovery closure date" absent Court order or agreement of the parties. 314 First MOTION for Discovery: for Permission to Obtain Copies of the Medical, Mental Health and Educational Records of the Plaintiff Children by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
NOTICE of TELEPHONIC Hearing on Motion 310 Fifth MOTION to Compel Discovery : TELEPHONIC Motion Hearing set for 6/3/2013 02:00 PM before Magistrate Judge Lincoln D. Almond. The Court will email participants call in instructions.(Noel, Jeannine) (Entered: 05/24/2013)
TEXT ORDER granting 321 MOTION to Seal Documents: Plaintiffs' Answers to Interrogatories and a letter that contain confidential information of the Plaintiff Children's placements, medical providers, mental health providers, and educational institutions by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 5/24/2013. (Noel, Jeannine) (Entered: 05/24/2013)
329 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Additional attachment(s) added on 8/2/2016: # 1 sealed docs) (Capraro, Dona). (Entered: 05/24/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: TELEPHONIC Motion Hearing held on 6/3/2013 re 310 Fifth MOTION to Compel Discovery filed by Tracy L., Danny B., Terrence T., Jared C., Cassie M. (Dembrow, Ingber, Baum, Kelly) All parties by phone; Argument; Motion granted in part; Order by the Court to follow (Courtroom A at 2:08 pm.) (Noel, Jeannine) (Entered: 06/03/2013)
TEXT ORDER GRANTED in limited part as stated at today's hearing and otherwise DENIED 310 Fifth MOTION to Compel Discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 6/3/2013. (Noel, Jeannine) (Entered: 06/03/2013)
330 USCA JUDGMENT (USCA Case No. 13-8014) entered on June 7, 2013 re: Petition for Permission to Appeal Pursuant to Fed. R. Civ. P. 23(f) or in the alternative, Petition For Writ of Mandamus filed by Petitioners Danny B., Jared C., Tracy L., Cassie M. and Terrence T. -- PETITION DENIED. (Duhamel, John) (Entered: 06/13/2013)
331 TRANSCRIPT REQUEST for proceedings held on 6/3/2013 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Entered: 06/17/2013)
Remark: Transcript Request 331 , CD and docket forwarded to Joseph Fontes, Court Reporter, via Fed-ex (Noel, Jeannine) (Entered: 06/18/2013)

06/21/2013
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07/17/2013 07/17/2013 07/17/2013 07/18/2013 07/23/2013 07/23/2013

332 TRANSCRIPT of Proceedings held on 6-3-13 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 7/12/2013. Redacted Transcript Deadline set for 7/22/2013. Release of Transcript Restriction set for 9/19/2013. (Fontes, Joseph) (Entered: 06/21/2013)
333 Joint MOTION to Amend/Correct Scheduling Order by All Defendants. Responses due by 7/15/2013 (Kelly, Neil) (Entered: 06/27/2013)
TEXT ORDER granting 333 Motion to Amend Scheduling Order Deadlines. Joint Supplemental Scheduling Order as proposed at Document 333 entered: Defendants' Supplement due by July 10, 2013; -Plaintiffs' Expert Disclosures due by July 10, 2013; -- Expert Discovery commences July 10, 2013; -- Defendants' Expert Disclosures due by August 28, 2013; -- Expert Discovery closes October 9, 2013; -Dispositive Motions due by 11/1/2013. So Ordered by Chief Judge Mary M. Lisi on 6/28/2013. (Duhamel, John) (Entered: 06/28/2013)
334 MOTION for Summary Judgment with respect to Terrence T. with supporting memo filed by All Defendants. Responses due by 8/5/2013 (Baum, Brenda) (Entered: 07/17/2013)
335 STATEMENT OF UNDISPUTED FACTS by All Defendants re 334 MOTION for Summary Judgment with respect to Terrence T.. (Baum, Brenda) (Entered: 07/17/2013)
336 MOTION to Seal Documents: Exhibits A and B in support of 334 Motion for Summary Judgment, filed by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 07/18/2013)
337 MOTION for an Extension of Time to file Defendants' Expert Disclosures filed by All Defendants. Responses due by 8/5/2013 (Kelly, Neil) (Entered: 07/18/2013)
NOTICE of Hearing: Telephone Conference set for Wednesday, 7/24/2013 at 11:00 AM in Chief Judge Lisi's Chambers. Counsel of record were provided with call-in instructions on 7/19/2013 via e-mail correspondence. (Duhamel, John) (Entered: 07/23/2013)
338 RESPONSE in Opposition re 337 MOTION for an Extension of Time to file Defendants' Expert Disclosures filed by Danny B., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ingber, Miriam) (Entered: 07/23/2013)

07/23/2013 07/23/2013 07/24/2013 07/24/2013 07/24/2013 07/24/2013 07/24/2013
07/24/2013

339 MOTION to Seal Documents: Exhibits C, D, and E re 338 Response in Opposition to 337 Motion for Extension of Time to File Defendants' Expert Disclosures; filed by Danny B., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Entered: 07/23/2013)
340 MOTION for Permission to Move to Admit One Additional Attorney Pro Hac Vice or, in the Alternative, to Temporarily Withdraw Adam Dembrow as Counsel of Record and Admit One Attorney Pro Hac Vice in His Stead filed by Danny B., Tracy L., Cassie M., Terrence T.. Responses due by 8/9/2013 (Attachments: # 1 Exhibit A)(Ingber, Miriam) (Entered: 07/23/2013)
341 APPLICATION FOR ADMISSION PRO HAC VICE re 340 MOTION for Permission to Move to Admit One Additional Attorney Pro Hac Vice or, in the Alternative, to Temporarily Withdraw Adam Dembrow as Counsel of Record and Admit One Attorney Pro Hac Vice in His Stead by Danny B., Tracy L., Cassie M., Terrence T. NOTICE: In order to view this document, you must first log in using your CMECF Filer login. . (Jackson, Kerrie) (Entered: 07/24/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 7/24/2013. Counsel participating: J. Dineen, M. Ingber, B. Baum. (Court Reporter Karen Wischnowsky.) (Duhamel, John) (Entered: 07/24/2013)
TEXT ORDER denying 337 Motion for Extension of Time to File Expert Disclosures. So Ordered by Chief Judge Mary M. Lisi pursuant to telephone conference held on 7/24/2013. (Duhamel, John) (Entered: 07/24/2013)
TEXT ORDER denying 339 Motion to Seal Documents: Exhibits C, D, and E re 338 Response in Opposition to 337 Motion for Extension of Time to File Expert Disclosures. So Ordered by Chief Judge Mary M. Lisi pursuant to telephone conference held on on 7/24/2013. (Note: Exhibits C, D, and E will be destroyed by the Court per agreement of Plaintiffs' counsel.) (Duhamel, John) (Entered: 07/24/2013)
TEXT ORDER granting in part and denying in part 340 Motion for Permission to Move to Admit One Additional Attorney Pro Hac Vice or, in the Alternative, to Temporarily Withdraw Adam Dembrow as Counsel of Record and Admit One Attorney Pro Hac Vice in His Stead: DENIED as to admission of an additional PHV attorney; GRANTED as to substituting PHV attorney William Kapell for PHV attorney Adam Dembrow, to assist Plaintiffs until the close of expert discovery. So Ordered by Chief Judge Mary M. Lisi on 7/24/2013. (Duhamel, John) (Entered: 07/24/2013)
342 TRANSCRIPT REQUEST for proceedings held on 7/24/2013 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 07/24/2013)

07/24/2013 07/24/2013 07/29/2013
07/30/2013 08/02/2013 08/02/2013
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343 TRIAL NOTICE (NON-JURY). Pretrial Memoranda due by October 10, 2013. Signed by Chief Judge Mary M. Lisi on 7/24/2013. (Duhamel, John) (Entered: 07/24/2013)
344 PRETRIAL SCHEDULING ORDER (NON-JURY). So Ordered by Chief Judge Mary M. Lisi on 7/24/2013. (Duhamel, John) (Entered: 07/24/2013)
345 MOTION for (1) Additional Discovery or, in the Alternative, Clarification of the Scope of the Trial; (2) Permission to Proceed with Requested Psychological Examinations; and (3) a Revised Class Certification Briefing Schedule WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M., Terrence T.. Responses due by 8/15/2013 (Attachments: # 1 Supporting Memorandum)(Ingber, Miriam) (Entered: 07/29/2013)
NOTICE of Hearing: Telephone Conference re Plaintiff's 345 MOTION for Additional Discovery, etc. set for WEDNESDAY, 8/14/2013 at 11:00 AM in Chief Judge Lisi's Chambers. Counsel will be provided with callin instructions. (Duhamel, John) (Entered: 07/30/2013)
346 Sixth MOTION to Compel Discovery WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M., Terrence T.. Responses due by 8/19/2013 (Attachments: # 1 Supporting Memorandum)(Ingber, Miriam) (Entered: 08/02/2013)
347 DECLARATION of MIRIAM INGBER re 346 Sixth MOTION to Compel Discovery by Danny B., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Ingber, Miriam) (Entered: 08/02/2013)
348 MOTION for a Decision on Class Certification Prior to Any Trial on the Merits and To Consolidate This Motion with Dkt. No. 345 for Consideration at the August 14, 2013 Telephone Conference WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M., Terrence T.. Responses due by 8/19/2013 (Attachments: # 1 Supporting Memorandum)(Ingber, Miriam) (Entered: 08/02/2013)
349 MOTION to Seal Documents: (Exhibits 18 through 21 to the 347 Declaration of Miriam Ingber in Support of Plaintiffs' 346 Sixth Motion to Compel Discovery) filed by Danny B., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 08/05/2013)
350 RESPONSE in Opposition re 334 MOTION for Summary Judgment with respect to Terrence T. and Rule 56(d) Motion for Additional Discovery

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08/09/2013 08/09/2013

Prior to Any Decision on Summary Judgment filed by Danny B., Tracy L., Cassie M., Terrence T.. (Ingber, Miriam) (Entered: 08/05/2013)
351 STATEMENT OF UNDISPUTED FACTS in Opposition to Defendants' Motion for Summary Judgment with Respect to the Claims Asserted on Behalf of Named Plaintiff Terrence T. by Danny B., Tracy L., Cassie M., Terrence T. re 350 Response in Opposition to Motion,. (Attachments: # 1 Exhibit A)(Ingber, Miriam) (Entered: 08/05/2013)
352 DECLARATION of MIRIAM INGBER re 350 Response in Opposition to Motion to Summary Judgment; and Rule 56(d) MOTION for Additional Discovery Prior to Any Decision on Summary Judgment as to Plaintiff Terrence T. by Danny B., Tracy L., Cassie M., Terrence T. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Ingber, Miriam) Modified on 8/6/2013 to correct event code. (Duhamel, John). (Entered: 08/05/2013)
353 MOTION to Seal Documents: (Exhibits B, C, and D re 351 Statement of Undisputed Facts in Opposition to 334 Motion for Summary Judgment; and, Exhibits 4 through 8 re 352 Motion for Additional Discovery Prior to Any Decision on Summary Judgment) filed by Danny B., Tracy L., Cassie M., Terrence T. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 08/06/2013)
354 TRANSCRIPT of Telephone Conference held on July 24, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 8/28/2013. Redacted Transcript Deadline set for 9/9/2013. Release of Transcript Restriction set for 11/5/2013. (Wischnowsky, Karen) (Entered: 08/07/2013)
355 RESPONSE in Opposition re 348 MOTION for a Decision on Class Certification Prior to Any Trial on the Merits and To Consolidate This Motion with Dkt. No. 345 for Consideration at the August 14, 2013 Telephone Conference, 345 MOTION for (1) Additional Discovery or, in the Alternative, Clarification of the Scope of the Trial; (2) Permission to Proceed with Requested Psychological Examinations; and (3) a Revised Class Certification Briefing Schedule with supporting memo filed by All Defendants. (Kelly, Neil) (Entered: 08/09/2013)
356 EXHIBIT IN SUPPORT by All Defendants in support of 355 Response in Opposition to Motion,, . (Kelly, Neil) (Entered: 08/09/2013)

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08/14/2013

357 MEMORANDUM IN SUPPORT by All Defendants in support of 334 MOTION for Summary Judgment with respect to Terrence T. . (Baum, Brenda) (Entered: 08/09/2013)
TEXT ORDER granting 336 MOTION to Seal Documents: (Exhibits A and B in support of Defendants' 334 Motion for Summary Judgment). So Ordered by Chief Judge Mary M. Lisi on 8/13/2013. (Duhamel, John) (Entered: 08/13/2013)
358 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Entered: 08/13/2013)
359 REPLY to Response to Motion re 355 Response in Opposition to 348 Motion for a Decision on Class Certification Prior to Any Trial on the Merits and for Additional Discovery and Permission to Proceed with Requested Psychological Examinations filed by Danny B., Tracy L., Cassie M., Terrence T.. (Attachments: # 1 Exhibit A)(Ingber, Miriam) (Entered: 08/13/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 8/14/2013. Multiple motions addressed by counsel for Plaintiffs (M. Lowry) and counsel for Defendants (N. Kelly). -- Defendants' 334 Motion for Summary Judgment as to Plaintiff Terrence T. (GRANTED) ---- Plaintiff Terrence T.'s 352 Motion for Additional Discovery prior to any decision on summary judgment. (DENIED) ---- Plaintiffs' 207 Second Motion for remaining Plaintiffs to be evaluated by Plaintiffs' retained psychologist Dr. Harry Adamakos. (UNDER ADVISEMENT pending supplemental filing by Defendants' attorney Neil Kelly, due by August 30, 2013; response due by September 6, 2013). ---- Plaintiffs' 345 Motion for 1) Additional Discovery (DENIED), 2) for ruling on Plaintiffs' 207 Second Motion for Plaintiffs to be evaluated by Plaintiffs' retained psychologist (GRANTED -the 207 Motion is under advisement pending supplemental filings), 3) to set a revised schedule for briefing on Plaintiffs' 287 Second Motion for Class Certification (DENIED) ---- Plaintiffs' 348 Motion for a Decision on Class Certification prior to any trial on the named Plaintiffs' individual claims. (DENIED) ---- Attorney Kelly to submit an Order for the Court's signature summarizing the rulings made today. ---- Another telephone conference will be set for September 10, 2013. (Court Reporter Debra Lajoie.) (Duhamel, John) (Entered: 08/14/2013)
TEXT ORDER granting 353 Motion to Seal Documents: Exhibits B, C, and D re 351 Statement of Undisputed Facts in Opposition to 334 Motion for Summary Judgment; and, Exhibits 4 through 8 re 352 Motion for Additional Discovery Prior to Any Decision on Summary Judgment. So Ordered by Chief Judge Mary M. Lisi on 8/14/2013. (Duhamel, John) (Entered: 08/14/2013)

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08/14/2013 08/14/2013
08/16/2013 08/16/2013
08/19/2013 08/19/2013

360 TRANSCRIPT REQUEST by Defendants for proceedings held on 8-1413 before Judge Lisi.. (Kelly, Neil) (Entered: 08/14/2013)
361 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 08/14/2013)
TEXT ORDER granting Plaintiffs' 292 Second/Renewed MOTION to Seal Document: Exhibit A in support of 284 Reply Memorandum re 270 Response in Opposition to 263 Appeal of Magistrates' 247 Memorandum and Order. So Ordered by Chief Judge Mary M. Lisi on 8/14/2013. (Duhamel, John) (Entered: 08/14/2013)
362 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 08/14/2013)
NOTICE of Hearing: Telephone Conference set for TUESDAY, 9/10/2013 at 02:00 PM in Chief Judge Lisi's Chambers. (This is a followup conference regarding some of the issues discussed during the 8/14/2013 telephone conference.) -- Counsel will be provided with call-in instructions.(Duhamel, John) (Entered: 08/14/2013)
363 TRANSCRIPT REQUEST for proceedings held on 8/14/2013 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 08/16/2013)
364 TRANSCRIPT of Telephone Conference held on 8/14/13 before Chief Judge Mary M. Lisi. Court Reporter/Transcriber Debra D. Lajoie, Telephone number 401-952-2731. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 9/6/2013. Redacted Transcript Deadline set for 9/16/2013. Release of Transcript Restriction set for 11/14/2013. (Lajoie, Debra) (Entered: 08/16/2013)
365 STIPULATION re 346 Sixth MOTION to Compel Discovery by All Defendants. (Kelly, Neil) (Entered: 08/19/2013)
366 ORDER granting 334 Motion for Summary Judgment as to Plaintiff Terrence T.; denying 345 Motion for Additional Discovery; denying 348 Motion (consolidated with 345 ) for a Decision on Class Certification prior to any trial on the named Plaintiff's individual claims; denying 352 Motion for Discovery & denying request made for additional discovery in 350 Response. -- Plaintiffs' 207 Second Motion for remaining Plaintiffs to be evaluated by retained psychologist Dr. Harry Adamakos is under advisement pending Defendants' supplemental filing by Defendants' counsel, due by 8/30/2013. Plaintiffs' response to Defendants' supplemetal filing is due by 9/6/2013. So Ordered by Chief

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Judge Mary M. Lisi on 8/19/2013. (Duhamel, John) (Entered: 08/19/2013)
TEXT ORDER entering 365 Stipulation: Defendants' response deadline to Plaintiffs' 346 Sixth Motion to Compel Discovery has been extended to August 21, 2013. Plaintiffs' Reply to Defendants' Response is due by September 3, 2013. So Ordered by Chief Judge Mary M. Lisi on 8/20/2013. (Duhamel, John) (Entered: 08/20/2013)
367 RESPONSE in Opposition re 346 Sixth MOTION to Compel Discovery with supporting memo filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit E)(Kelly, Neil) (Entered: 08/21/2013)
368 MOTION to Seal Document: Exhibit D re 367 Response in Opposition to 346 Sixth Motion to Compel Discovery filed by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 08/21/2013)
369 MOTION to Withdraw as Attorney Adam Dembrow and William Kapell as Counsel of Record, and To Admit Ira P. Lustbader Pro Hac Vice in Their Stead filed by Danny B., Tracy L., Cassie M.. Responses due by 9/9/2013 (Ingber, Miriam) (Entered: 08/22/2013)
NOTICE of Telephonic Hearing on Motion 346 Sixth MOTION to Compel Discovery : TELEPHONIC Motion Hearing set for 9/19/2013 10:00 AM in Courtroom A before Magistrate Judge Lincoln D. Almond. The court will email call in instructions to the parties.(Noel, Jeannine) (Entered: 08/23/2013)
370 WITHDRAWAL of: 369 MOTION to Withdraw as Attorney Adam Dembrow and William Kapell as Counsel of Record, and To Admit Ira P. Lustbader Pro Hac Vice in Their Stead by Danny B., Tracy L., Cassie M. . (Ingber, Miriam) (Entered: 08/23/2013)
371 MOTION for Ira P. Lustbader to Appear Pro Hac Vice filed by Danny B., Tracy L., Cassie M.. (Dineen, John) (Entered: 08/23/2013)
372 MOTION to Withdraw as Attorney Adam Dembrow and William Kapell as Counsel of Record filed by Danny B., Tracy L., Cassie M.. Responses due by 9/9/2013 (Ingber, Miriam) (Entered: 08/23/2013)
373 APPLICATION FOR ADMISSION PRO HAC VICE re 371 MOTION for Ira P. Lustbader to Appear Pro Hac Vice by Danny B., Tracy L., Cassie M. NOTICE: In order to view this document, you must first log in using your CMECF Filer login. . (Duhamel, John) (Entered: 08/23/2013)
374 First MOTION for an Extension of Time for an Additional Two Days to Submit Expert Disclosures filed by All Defendants. Responses due by 9/12/2013 (Kelly, Neil) (Entered: 08/26/2013)

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375 NOTICE OF OBJECTION by Danny B., Tracy L., Cassie M. re 366 Order (Response to August 19, 2013 Order) (Ingber, Miriam) (Entered: 08/26/2013)
TEXT ORDER granting 374 Defendants' Motion for an additional two days to submit expert disclosures up to and including August 30, 2013. So Ordered by Magistrate Judge Lincoln D. Almond on 8/27/2013. (Noel, Jeannine) (Entered: 08/27/2013)
376 MOTION to Compel Access to the Named Plaintiffs for the Purpose of Trial Preparation WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 9/16/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Ingber, Miriam) (Entered: 08/29/2013)
377 MOTION to Seal Documents: Exhibits "F" and "G" in support of 376 Motion to Compel Access to Named Plaintiffs for the Purpose of Trial Preparation filed by Danny B., Tracy L., Cassie M. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 08/30/2013)
378 REPLY to Response to Motion re 367 Response in Opposition to 346 Sixth Motion To Compel Discovery filed by Danny B., Tracy L., Cassie M. (Ingber, Miriam) (Entered: 08/30/2013)
379 SUPPLEMENTAL MEMORANDUM IN SUPPORT by All Defendants in support of 245 Response in Opposition to Plaintiffs' Counsel's 207 Second Motion to Have Cassie M., Tracy L. and Danny B. Evaluated by Plaintiffs' Counsel's Retained Psychologist . (Baum, Brenda) . Modified on 8/30/2013 to create document links. (Duhamel, John) (Entered: 08/30/2013)
380 MOTION to Seal Documents: Exhibits A, B, C, D, E, F, G, and H in support of 379 Supplemental Memorandum filed by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 08/30/2013)
381 MOTION to Seal Document filed by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. (Jackson, Kerrie) (Main Document 381 replaced on 9/6/2013) (Jackson, Kerrie). (Entered: 09/05/2013)
382 ORDER granting 381 Motion to Seal Document. So Ordered by Chief Judge Mary M. Lisi on 9/5/2013. (Jackson, Kerrie) (Main Document 382 replaced on 9/5/2013) (Jackson, Kerrie). (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 09/05/2013)
383 *SEALED* Sealed Document. Placed in Vault #6. (Jackson, Kerrie) (Entered: 09/05/2013)

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384 MOTION for an Extension of Time of Expert Discovery Deadline and a Resetting of the Trial Date and Related Pre-Trial Deadlines filed by Danny B., Tracy L., Cassie M.. Responses due by 9/23/2013 (Ingber, Miriam) (Entered: 09/05/2013)
385 MEMORANDUM IN OPPOSITION by Danny B., Tracy L., Cassie M. in opposition to 379 Memorandum in Support, of Their Objection to Plaintiffs' Second Motion To Be Evaluated By Plaintiffs' Retained Psychologist. (Ingber, Miriam) (Entered: 09/06/2013)
386 RESPONSE IN OPPOSITION by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino re 385 Memorandum in Opposition . (Attachments: # 1 Exhibit A)(Kelly, Neil) (Entered: 09/09/2013)
387 RESPONSE in Opposition re 384 MOTION for an Extension of Time of Expert Discovery Deadline and a Resetting of the Trial Date and Related Pre-Trial Deadlines filed by All Defendants. (Kelly, Neil) (Entered: 09/10/2013)
388 TRANSCRIPT REQUEST for proceedings held on 9/10/2013 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 09/10/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference re 207 Second Motion To Be Evaluated By Plaintiffs' Retained Psychologist held on 9/10/2013. Counsel of record participating: M. Lowry; M. Ingber; N. Kelly; B. Baum. -The 207 Motion is granted as to Danny B.; Court advises counsel that certain conditions have yet to be met with regard to this motion as to Cassie M. and Tracy L. -- With no objection from counsel for Defendants, the 371 Motion for Ira P. Lustbader to be admitted PHV and the 372 Motion for Withdrawal of PHV counsel Adam Dembrow and William Kapell are granted. -- An additional telephone conference will be conducted on Tuesday, 9/24/2013 to address the 376 Motion to Compel Access to Named Plantiffs for Purpose of Trial Preparation and the 384 Motion for Extension of Expert Discovery Deadline and Resetting of Trial Date and Related Pretrial Deadlines. (Court Reporter Karen Wischnowsky.) (Duhamel, John) (Entered: 09/10/2013)
TEXT ORDER granting 371 Motion to Appear Pro Hac Vice of Ira P. Lustbader. So Ordered by Chief Judge Mary M. Lisi on 9/9/2013. (Duhamel, John) (Entered: 09/10/2013)
TEXT ORDER granting 372 Motion to Withdraw as PHV Attorneys: Attorneys Adam Dembrow and William Kapell terminated. So Ordered by Chief Judge Mary M. Lisi on 9/10/2013. (Duhamel, John) (Entered: 09/10/2013)
TEXT ORDER re 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist filed by Tracy L., Danny B., Cassie M. -- The

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motion is GRANTED as to Plaintiff Danny B; the motion remains pending as to Plaintiffs Tracy L. and Cassie M. until certain conditions as required by the Court are satisfied; all pursuant to the Telephonic Conference held on 9/10/2013 before Chief Judge Mary M. Lisi. So Ordered by Chief Judge Mary M. Lisi on 9/10/2013. (Duhamel, John) (Entered: 09/10/2013)
NOTICE of TELEPHONIC Hearing on Motions re 384 MOTION for an Extension of Time of Expert Discovery Deadline and a Resetting of the Trial Date and Related Pre-Trial Deadlines, 376 MOTION to Compel Access to the Named Plaintiffs for the Purpose of Trial Preparation: Motions Hearing set for TUESDAY, 9/24/2013 at 02:00 PM in Chief Judge Lisi's Chambers. -- Counsel have been provided with call-in instructions. (Duhamel, John) (Entered: 09/10/2013)
389 RESPONSE in Opposition re 376 MOTION to Compel Access to the Named Plaintiffs for the Purpose of Trial Preparation with supporting memo filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kelly, Neil) (Entered: 09/11/2013)
TEXT ORDER granting 377 Motion to Seal Documents: Exhibits "F" and "G" in support of 376 Motion to Compel Access to Named Plaintiffs for the Purpose of Trial Preparation. So Ordered by Chief Judge Mary M. Lisi on 9/12/2013. (Duhamel, John) (Entered: 09/12/2013)
390 Sealed Documents placed in vault; lockup #6 (Duhamel, John) (Capraro, Dona). (Entered: 09/12/2013)
TEXT ORDER granting 380 Motion to Seal Documents: Exhibits A, B, C, D, E, F, G, and H in support of 379 Supplemental Memorandum. So Ordered by Chief Judge Mary M. Lisi on 9/12/2013. (Duhamel, John) (Entered: 09/12/2013)
391 Sealed Documents placed in vault; lockup #6 (Duhamel, John) (Capraro, Dona). (Entered: 09/12/2013)
392 TRANSCRIPT of Telephone Conference held on September 10, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 10/3/2013. Redacted Transcript Deadline set for 10/15/2013. Release of Transcript Restriction set for 12/11/2013. (Wischnowsky, Karen) (Entered: 09/12/2013)

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09/19/2013 09/19/2013

TEXT ORDER granting in part and denying in part 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist: GRANTED as to Danny B.; UNDER ADVISEMENT as to Tracy L. and Cassie M. until certain conditions are met in accordance with the Court's instructions during the telephone conference conducted on 9/10/2013. So Ordered by Chief Judge Mary M. Lisi on 9/12/2013. (Duhamel, John) Modified on 9/13/2013 to correct docket text as to status of motion re Plaintiffs Tracy L. & Cassie M. (Duhamel, John). (Entered: 09/12/2013)
TEXT ORDER granting 210 Motion to Seal Document: Exhibit 1 in support of 207 Second MOTION To Be Evaluated By Plaintiffs' Retained Psychologist. So Ordered by Chief Judge Mary M. Lisi on 9/12/2013. (Duhamel, John) (Entered: 09/12/2013)
393 Sealed Document placed in vault; lockup #6 (Duhamel, John) (Capraro, Dona). (Additional attachment(s) added on 8/2/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 09/12/2013)
TEXT ORDER granting 293 Motion to Seal Document: Exhibit 18 in support of 288 Declaration of Marcia Robinson Lowry re 287 Second Motion to Certify Class. So Ordered by Chief Judge Mary M. Lisi on 9/12/2013. (Duhamel, John) (Entered: 09/12/2013)
394 Sealed Document placed in vault; lockup #6 (Duhamel, John) (Capraro, Dona). (Entered: 09/12/2013)
395 MOTION for Leave to File Supplemental Reply in Further Support of Their Sixth Motion To Compel Discovery filed by Danny B., Tracy L., Cassie M.. Responses due by 10/7/2013 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ingber, Miriam) (Entered: 09/18/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 9/19/2013 re 346 Sixth MOTION to Compel Discovery filed by Tracy L., Danny B., Terrence T., Cassie M. Miriam Ingber for plaintiffs; Neil Kelly and Brenda Baum for the defendant; Counsel of record present via telephone. Court to grant motion to file supplemental reply 395 ; Defendant shall file response to the reply within 7 days; Attorney argue motion; Court takes matter under advisement. (Courtroom A at 10:41.) (Saucier, Martha) (Entered: 09/19/2013)
396 TRANSCRIPT REQUEST for proceedings held on 9/19/2013 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Entered: 09/19/2013)
397 REPLY MEMORANDUM re 346 Sixth MOTION to Compel Discovery Plaintiffs' Supplemental Reply in Further Support. (Attachments: # 1 Exhibit A)(Ingber, Miriam) (Entered: 09/19/2013)

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09/24/2013 09/24/2013

Remark: Transcript Request 396 , CD and docket forwarded to Joseph Fontes, Court Reporter, via Fedex (Noel, Jeannine) (Entered: 09/19/2013)
398 REPLY to Response to Motion re 387 Response in Opposition to Motion for an Extension of the Expert Discovery Deadline and a Resetting of the Trial Date and Related Pre-Trial Deadlines filed by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 09/20/2013)
399 REPLY to Response to Motion re 389 Response in Opposition to Motion, To Compel Access to the Named Plaintiffs for the Purpose of Trial Preparation filed by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 09/23/2013)
400 TRANSCRIPT of Proceedings held on 9/19/13 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 10/15/2013. Redacted Transcript Deadline set for 10/25/2013. Release of Transcript Restriction set for 12/23/2013. (Fontes, Joseph) (Entered: 09/24/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Telephone Conference held on 9/24/2013 re 207 Second Motion to be Evaluated by Plaintiffs' Retained Psychologist as to Tracy L. & Cassie M. (GRANTED); 376 Motion to Compel Access to Named Plaintiffs for Purposes of Trial Preparation (DENIED); 384 Motion to Extend Expert Discovery Deadline and to Reset Trial Date and Related Pretrial Deadlines (GRANTED IN PART). -- Counsel of record participating: J. Dineen, M. Ingber, I. Lustbader, N. Kelly, B. Baum (Court Reporter Karen Wischnowsky.) (Duhamel, John) (Entered: 09/24/2013)
401 ORDER granting in part and denying in part 384 Motion for Extension of Expert Discovery Deadline and other relief. Deadlines reset as indicated on the attached Order. -- Expert Discovery to close on October 30, 2013. Bench Trial in this matter set to commence on Tuesday, November 12, 2013 at 9:30 a.m. (Pretrial Memoranda due on or before November 4, 2013.) -- So Ordered by Chief Judge Mary M. Lisi on 9/24/2013. (Duhamel, John) (Entered: 09/24/2013)
TEXT ORDER granting 207 Motion to be Evaluated by Plaintiffs' Retained Psychologist as to Plaintiffs Tracy L. & Cassie M., for reasons stated on the record during telephone conference held on 9/24/2013. So Ordered by Chief Judge Mary M. Lisi on 9/24/2013. -- (The 207 Motion as to Plaintiff Danny B. was granted by Text Order on 9/12/2013.) (Duhamel, John) (Entered: 09/24/2013)

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TEXT ORDER denying 376 Motion to Compel Access to Named Plaintiffs for the Purpose of Trial Preparation; for reasons stated on the record during telephone conference held on 9/24/2013. So Ordered by Chief Judge Mary M. Lisi on 9/24/2013. (Duhamel, John) (Entered: 09/24/2013)
NOTICE of Hearing: BENCH TRIAL set to commence TUESDAY, 11/12/2013 at 09:30 AM in Courtroom 1 before Chief Judge Mary M. Lisi. (Duhamel, John) (Entered: 09/24/2013)
402 TRANSCRIPT REQUEST for proceedings held on 9/24/2013 before Judge Mary M. Lisi.. (Ingber, Miriam) (Entered: 09/24/2013)
403 NOTICE of Hearing: Final Pretrial Conference set for FRIDAY, 11/1/2013 at 10:00 AM in Chief Judge Lisi's Chambers - Room 310, before Chief Judge Mary M. Lisi. (Duhamel, John) (Entered: 09/26/2013)
404 RESPONSE in Opposition re 395 MOTION for Leave to File Supplemental Reply in Further Support of Their Sixth Motion To Compel Discovery Defendants' Objection to Plaintiffs' Supplemental Reply filed by All Defendants. (Kelly, Neil) (Entered: 09/26/2013)
405 MEMORANDUM AND ORDER denying 346 Plaintiffs' Sixth Motion to Compel Discovery. However, fact discovery is hereby REOPENED for the limited purpose of giving Plaintiffs the opportunity, by October 31, 2013, to depose Butler and Malin concerning their email practices involving Named Plaintiff Danny B. So Ordered by Magistrate Judge Lincoln D. Almond on 10/3/2013. (Noel, Jeannine) (Entered: 10/03/2013)
Set/Reset Deadlines: Limited Factual Discovery due by 10/31/2013. (Noel, Jeannine) (Entered: 10/03/2013)
TEXT ORDER granting 349 MOTION to Seal Document ( Exhibits 18 through 21 to the 347 Declaration of Miriam Ingber in Support of Plaintiffs' 346 Sixth Motion to Compel Discovery); granting 368 MOTION to Seal Document Exhibit D re 367 Response in Opposition to 346 Sixth Motion to Compel Discovery; granting 395 MOTION for Leave to File Supplemental Reply in Further Support of Their Sixth Motion To Compel Discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 10/3/2013. (Noel, Jeannine) (Entered: 10/03/2013)
406 Sealed Documents placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 10/04/2013)
407 Sealed Document placed in vault; lockup #6. (Duhamel, John) (Capraro, Dona). (Entered: 10/04/2013)

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408 ORDER re video recordings of evaluations by Plaintiffs' retained psychologist of Plaintiffs Tracy L., Cassie M., and Danny B. (as requested in motion at 207 and subsequently granted by this Court): the video recordings are to be placed under the protection of the District Court and are subject to the Protective Order issued at 133 ; copies of the recordings are to be made available to the entities listed within the attached Order and are to be maintained as confidential; thirty (30) days after the entry of final judgment from the highest court to hear this matter, all copies of the video recordings shall be destroyed (and certification of such destruction submitted to the District Court). So Ordered by Chief Judge Mary M. Lisi on 10/4/2013. (Duhamel, John) (Entered: 10/04/2013)
409 MOTION To Preclude Defendants' Use of Late Produced Licensing Materials WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 10/21/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I)(Ingber, Miriam) (Entered: 10/04/2013)
410 MOTION to Seal Documents: Exhibits B, C, and D re Plaintiffs' 409 Motion to Preclude Defendants' Use of Late-Produced Licensing Materials filed by Danny B., Tracy L., Cassie M.. (Duhamel, John) (Entered: 10/07/2013)
411 First MOTION to Expedite to Obtain Copies of the Test Manuals,Questions and Answers Obtained by Dr. Adamakos of the Named Plaintiffs filed by All Defendants. Responses due by 10/25/2013 (Attachments: # 1 Exhibit A)(Baum, Brenda) (Entered: 10/08/2013)
412 RESPONSE in Opposition re 411 First MOTION to Expedite to Obtain Copies of the Test Manuals,Questions and Answers Obtained by Dr. Adamakos of the Named Plaintiffs filed by Danny B., Tracy L., Cassie M.. (Lustbader, Ira) (Entered: 10/08/2013)
413 PLEASE NOTE TIME CHANGE -- REVISED NOTICE of Hearing: Final Pretrial Conference RESET for FRIDAY, 11/1/2013 at 11:00 AM in Chief Judge Lisi's Chambers - Room 310. (SEE ATTACHED DOCUMENT/INSTRUCTIONS) (Duhamel, John) (Duhamel, John). (Entered: 10/09/2013)
414 NOTICE by Danny B., Tracy L., Cassie M. Plaintiffs' Deposition Designations (Attachments: # 1 Exhibit 1)(Ingber, Miriam) (Entered: 10/09/2013)
NOTICE of TELEPHONIC Hearing on Motion 411 First MOTION to Expedite to Obtain Copies of the Test Manuals,Questions and Answers Obtained by Dr. Adamakos of the Named Plaintiffs : TELEPHONIC Motion Hearing set for 10/11/2013 10:30 AM in Courtroom A before

10/10/2013 10/11/2013 10/11/2013
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Magistrate Judge Lincoln D. Almond. The court will email call in instructions to the parties.(Saucier, Martha) (Entered: 10/10/2013)
415 REPLY in Support re 411 First MOTION to Expedite to Obtain Copies of the Test Manuals,Questions and Answers Obtained by Dr. Adamakos of the Named Plaintiffs filed by All Defendants. (Kelly, Neil) (Entered: 10/10/2013)
416 TRANSCRIPT REQUEST for proceedings held on 10/11/2013 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Entered: 10/11/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 10/11/2013 re 411 First MOTION to Expedite to Obtain Copies of the Test Manuals,Questions and Answers Obtained by Dr. Adamakos of the Named Plaintiffs filed by Lincoln D. Chafee, Kevin J. Aucoin, Steven M. Costantino. Plaintiffs: M. Lowry; Defendants: N. Kelly, B. Baum. Counsel of record present via telephone. Court addresses counsel. Defense counsel reviews scheduling timeline set by Chief Judge Lisi. Court hears argument on motion. Court takes matter under advisement. (Courtroom A at 10:39.) (Leyva, Lucia) (Entered: 10/11/2013)
417 TRANSCRIPT of Telephone Conference held on September 24, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 11/1/2013. Redacted Transcript Deadline set for 11/12/2013. Release of Transcript Restriction set for 1/9/2014. (Wischnowsky, Karen) (Entered: 10/11/2013)
418 MEMORANDUM AND ORDER granting 411 Defendants ExpeditedMotion to Obtain Copies of the Test Manuals, Questions and Answers Obtained by Dr. Adamakosof the Named Plaintiffs during evaluations held on October 5 and 6, 2013. So Ordered by Magistrate Judge Lincoln D. Almond on 10/11/13. (Saucier, Martha) (Entered: 10/11/2013)
Remark: Transcript Request 416 , CD and docket sheet forwarded to Joseph Fontes, Court Reporter, via Fed-ex. (Noel, Jeannine) (Entered: 10/15/2013)
419 First MOTION to Expedite for Clarification to Provide Viewing Access of the Evaluations of Dr. Adamakos for Trial Preparations filed by All Defendants. Responses due by 11/4/2013 (Kelly, Neil) (Entered: 10/16/2013)

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420 RESPONSE in Opposition re 419 First MOTION to Expedite for Clarification to Provide Viewing Access of the Evaluations of Dr. Adamakos for Trial Preparations filed by Danny B., Tracy L., Cassie M.. (Lowry, Marcia Robinson) (Entered: 10/16/2013)
421 CONFIDENTIALITY ORDER. So Ordered by Magistrate Judge Lincoln D. Almond on 10/17/2013. (Noel, Jeannine) (Entered: 10/17/2013)
TEXT ORDER denying 419 First MOTION to Expedite for Clarification to Provide Viewing Access of the Evaluations of Dr. Adamakos for Trial Preparations filed by All Defendants. The issues raised by Defendants' Motion are clearly and adequately addressed in Document Nos. 408 and 421. So Ordered by Magistrate Judge Lincoln D. Almond on 10/17/2013. (Noel, Jeannine) (Entered: 10/17/2013)
422 Expedited MOTION to Clarify and Amend 401 Scheduling Order Deadlines filed by Danny B., Tracy L., Cassie M.. Responses due by 11/4/2013 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ingber, Miriam) (Entered: 10/17/2013)
423 TRANSCRIPT of Proceedings held on 10-11-13 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 11/8/2013. Redacted Transcript Deadline set for 11/18/2013. Release of Transcript Restriction set for 1/16/2014. (Fontes, Joseph) (Entered: 10/18/2013)
424 MOTION to Seal Document: Deposition related to Defendants' 425 Objection to Plaintiffs' 409 Motion To Preclude Defendants' Use of Late Produced Licensing Materials filed by All Defendants. (Duhamel, John) (Entered: 10/18/2013)
425 RESPONSE in Opposition re 409 MOTION To Preclude Defendants' Use of Late Produced Licensing Materials filed by All Defendants. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G)(Baum, Brenda) (Entered: 10/18/2013)
426 RESPONSE in Opposition re 422 Expedited MOTION to Clarify and Amend the 401 Scheduling Order filed by All Defendants. (Baum, Brenda) (Entered: 10/21/2013)
TEXT ORDER denying 422 Expedited MOTION to Clarify and Amend 401 Scheduling Order Deadlines filed by Danny B., Tracy L., Cassie M. -- So Ordered by Chief Judge Mary M. Lisi on 10/22/2013. (Duhamel, John) (Entered: 10/22/2013)

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10/29/2013 10/30/2013

427 TRANSCRIPT REQUEST for proceedings held on October 11, 2013 before Magistrate Judge Almond. (Kelly, Neil) Modified on 10/23/2013 (Noel, Jeannine). (Entered: 10/22/2013)
Remark: Transcript Request 427 emailed to Joseph Fontes, Court Reporter. (Noel, Jeannine) (Entered: 10/23/2013)
428 NOTICE by Danny B., Tracy L., Cassie M. Plaintiffs' First Supplemental Deposition Designations (Attachments: # 1 Exhibit 1)(Ingber, Miriam) (Entered: 10/23/2013)
429 First MOTION in Limine to Preclude Parts of Plaintiffs' Deposition Designations and Exhibit List filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D)(Kelly, Neil) (Entered: 10/25/2013)
430 MOTION to Seal Document filed by All Defendants. (Farrell Pletcher, Paula) (Entered: 10/25/2013)
431 NOTICE by Danny B., Tracy L., Cassie M. Plaintiffs' Second Supplemental Deposition Designations (Attachments: # 1 Exhibit 1)(Ingber, Miriam) (Entered: 10/28/2013)
432 REPLY to Response to Motion re 425 Response in Opposition to Motion, To Preclude Defendants' Use of Late Produced Licensing Files filed by Danny B., Tracy L., Cassie M.. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit H (redacted))(Ingber, Miriam) (Entered: 10/28/2013)
433 MEMORANDUM IN OPPOSITION by All Defendants in opposition to 428 Notice, 431 Notice The State's Objection to Plaintiffs' First and Second Supplemental Deposition Designations. (Kelly, Neil) (Entered: 10/29/2013)
Remark: The court is in receipt (from Plaintiffs, via Fed-Ex delivery on 10/29/2013) of paper copies (4 looseleaf binders) of the entire transcripts of all depositions from which testimony has been designated, along with copies of Plaintiffs' deposition designations from those transcripts. -(Plaintiffs' deposition designations were previously filed electronically at Dkt. Nos. 414 , 428 , 431 .) (Duhamel, John) (Entered: 10/29/2013)
434 MOTION to Seal Documents: Exhibits A, G, and H to Plaintiffs' 432 Reply to 425 Response in Opposition to 409 Motion to Preclude Defendants' Use of Late Produced Licensing Materials filed by Danny B., Tracy L., Cassie M. (Duhamel, John) (Entered: 10/29/2013)
435 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kelly, Neil) (Entered: 10/30/2013)

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436 RESPONSE IN OPPOSITION by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino re 414 Notice: The State's Objections to Plaintiffs' Deposition Designations, Cross-Designations and State's Deposition Designations. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kelly, Neil) (Entered: 10/30/2013)
437 RESPONSE in Opposition re 429 First MOTION in Limine to Preclude Parts of Plaintiffs' Deposition Designations and Exhibit List filed by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 10/31/2013)
Remark: The court is in receipt (from Defendants, hand-delivered on 10/31/2013) of paper copies (2 looseleaf binders) of the transcripts for the 3 depositions from which testimony has been designated. (Copies of Defendants' deposition designations/cross designations also included.) (Duhamel, John) (Entered: 10/31/2013)
438 MEMORANDUM IN OPPOSITION (REPLY) by Danny B., Tracy L., Cassie M. in opposition to 433 Memorandum in Opposition to Plaintiffs' First and Second Supplemental Deposition Designations. (Ingber, Miriam) (Entered: 10/31/2013)
439 MOTION to Seal Document: Exhibit "A" to Plaintiffs' 437 Response in Opposition to Defendants' 429 Motion in Limine to Preclude Parts of Plaintiffs' Deposition Designations and Exhibit List, filed by Danny B., Tracy L., Cassie M. (Duhamel, John) (Entered: 11/01/2013)
440 TRANSCRIPT REQUEST for proceedings held on 11/1/13 before Judge Lisi.. (Ingber, Miriam) (Entered: 11/01/2013)
441 MOTION to Seal Documents: Copies of video recordings of Dr. Adamakos' interviews with 3 named plaintiffs filed by All Defendants. (Duhamel, John) (Entered: 11/01/2013)
TEXT ORDER granting 441 Motion to Seal Documents (DVDs). So Ordered by Chief Judge Mary M. Lisi on 11/1/2013. (Duhamel, John) (Entered: 11/01/2013)
442 Sealed Documents placed in vault; lockup #6.(Duhamel, John) (Entered: 11/01/2013)
443 RESPONSE IN OPPOSITION by Danny B., Tracy L., Cassie M. re 436 Response in Opposition, to Plaintiffs' Deposition Designations, Cross-Designations and State's Deposition Designations. (Ingber, Miriam) (Entered: 11/01/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Final Pretrial Conference held on 11/1/2013 in chambers. Counsel of record present. (Jackson, Kerrie) (Entered: 11/04/2013)
444 NOTICE of Appearance by Edward G. Mullaney on behalf of All Defendants (Mullaney, Edward) (Entered: 11/04/2013)

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445 NOTICE of Appearance by Ariele Yaffee on behalf of All Defendants (Yaffee, Ariele) (Entered: 11/04/2013)
446 PRETRIAL MEMORANDUM by Danny B., Tracy L., Cassie M.. (Attachments: # 1 Exhibit A)(Lowry, Marcia Robinson) (Entered: 11/04/2013)
447 PRETRIAL MEMORANDUM by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino. (Kelly, Neil) (Entered: 11/04/2013)
448 First MOTION to Expedite State Defendants' Emergency Motion Regarding the Deposition of Dr. Harry Adamakos filed by All Defendants. Responses due by 11/22/2013 (Kelly, Neil) (Entered: 11/05/2013)
NOTICE of TELEPHONIC Hearing on Motion 448 First MOTION to Expedite State Defendants' Emergency Motion Regarding the Deposition of Dr. Harry Adamakos : TELEPHONIC Motion Hearing set for 11/6/2013 11:00 AM before Magistrate Judge Lincoln D. Almond. Counsel will be emailed call in instructions.(Noel, Jeannine) (Entered: 11/05/2013)
449 RESPONSE in Opposition re 448 First MOTION to Expedite State Defendants' Emergency Motion Regarding the Deposition of Dr. Harry Adamakos filed by Danny B., Tracy L., Cassie M.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Ingber, Miriam) (Entered: 11/05/2013)
TEXT ORDER: STRIKING Exhibit "A" to the 446 Pretrial Memorandum filed by Tracy L., Danny B., Cassie M. -- The Court's 401 Order issued on 9/24/2013 (See Paragraph 7) specifically limits the filing of pretrial memoranda to no more than 35 pages. So Ordered by Chief Judge Mary M. Lisi on 11/6/2013. (Duhamel, John) (Entered: 11/06/2013)
450 TRANSCRIPT REQUEST for proceedings held on 11/6/2013 before Judge Lincoln D. Almond.. (Ingber, Miriam) (Entered: 11/06/2013)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: TELEPHONIC Motion Hearing held on 11/6/2013 re 448 First MOTION to Expedite State Defendants' Emergency Motion Regarding the Deposition of Dr. Harry Adamakos filed by Lincoln D. Chafee, Kevin J. Aucoin, Steven M. Costantino. (Ingber, Lustbader, Kelly, Baum) All parties by phone; Argument; Counsel to report status of scheduling deposition to the Court (Courtroom A at 11:04 am.) (Noel, Jeannine) (Entered: 11/06/2013)
Remark: Transcript Request 450 , CD and docket forwarded to Joseph Fontes, Court Reporter, via Fed-ex (Noel, Jeannine) (Entered: 11/06/2013)

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TEXT ORDER DENIED as moot in view of the parties' agreement to depose Dr. Adamakos in Providence following the conclusion of trial on Tuesday, November 19, 2013 448 First MOTION to Expedite State Defendants' Emergency Motion Regarding the Deposition of Dr. Harry Adamakos filed by All Defendants. So Ordered by Magistrate Judge Lincoln D. Almond on 11/7/2013. (Noel, Jeannine) (Entered: 11/07/2013)
451 MOTION to Strike 436 Response in Opposition, Defendants' Designations from the Deposition of Richard Klarberg and Karen Callendar WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 11/25/2013 (Attachments: # 1 Supporting Memorandum)(Lowry, Marcia Robinson) (Entered: 11/08/2013)
452 First MOTION for Protective Order and/or Motion to Quash filed by All Defendants. Responses due by 11/29/2013 (Attachments: # 1 Exhibit A)(Kelly, Neil) (Entered: 11/11/2013)
453 RESPONSE in Opposition re 452 First MOTION for Protective Order and/or Motion to Quash filed by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 11/11/2013)
454 TRANSCRIPT of Proceedings held on 11/6/13 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 5614527507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 12/3/2013. Redacted Transcript Deadline set for 12/13/2013. Release of Transcript Restriction set for 2/10/2014. (Fontes, Joseph) (Entered: 11/12/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 1) held on 11/12/2013. Dineen, Lowry, Bobrow, Dembrow, Ingber and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 5 exhibits offered. Bench Trial continued until Wednesday, 11/13/2013 at 10:00AM. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:00.) (Jackson, Kerrie) (Entered: 11/12/2013)
455 MOTION To Admit into Evidence "Summary of Report 164A: Family Service Unit Statistics" Under Federal Rule of Evidence 1006 WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 11/29/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B)(Ingber, Miriam) (Entered: 11/12/2013)

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456 DECLARATION re 455 MOTION To Admit into Evidence "Summary of Report 164A: Family Service Unit Statistics" Under Federal Rule of Evidence 1006 by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 11/12/2013)
457 MOTION To Admit into Evidence "Summary of Child Welfare Outcomes Report Data" Under Federal Rule of Evidence 1006 WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 11/29/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Ingber, Miriam) (Entered: 11/12/2013)
458 DECLARATION re 457 MOTION To Admit into Evidence "Summary of Child Welfare Outcomes Report Data" Under Federal Rule of Evidence 1006 by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 11/12/2013)
459 MOTION To Admit into Evidence "Summary of Rhode Island Department of Children, Youth and Families Service Plans" Under Federal Rule of Evidence 1006 WITH SUPPORTING MEMO filed by Danny B., Tracy L., Cassie M.. Responses due by 11/29/2013 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A)(Ingber, Miriam) (Entered: 11/12/2013)
460 DECLARATION re 459 MOTION To Admit into Evidence "Summary of Rhode Island Department of Children, Youth and Families Service Plans" Under Federal Rule of Evidence 1006 by Danny B., Tracy L., Cassie M.. (Ingber, Miriam) (Entered: 11/12/2013)
461 MOTION to Seal Document: Exhibit B to Plaintiffs' Memorandum in support of 459 Motion to Admit into Evidence "Summary of RI DCYF Service Plans" filed by Danny B., Tracy L., Cassie M. (Duhamel, John) (Entered: 11/13/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 2) held on 11/13/2013. Dineen, Lowry, Bobrow, Dembrow, Ingber and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 2 exhibits offered. Bench Trial continued until Thursday, 11/14/2013 at 10:00AM. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:00.) (Jackson, Kerrie) (Entered: 11/13/2013)
TEXT ORDER: WITHDRAWING 455 Motion to Admit into Evidence "Summary of Report 164A: Family Service Unit Statistics" & 456 Declaration in support; WITHDRAWING 457 Motion to Admit into Evidence "Summary of Child Welfare Outcomes Report Data" & 458 Declaration in support; WITHDRAWING 459 Motion to Admit into Evidence "Summary of Rhode Island Department of Children, Youth and Families Service Plans" & 460 Declaration in support; and,

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TERMINATING 461 Motion to Seal Document: Exhibit "B" to Plaintiffs' Memorandum in support of 459 Motion to Admit into Evidence "Summary of RI DCYF Service Plans" -- So Ordered by Chief Judge Mary M. Lisi on 11/14/2013 subsequent to Bench Trial Proceedings. (Duhamel, John) (Entered: 11/14/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 3) held on 11/14/2013. Dineen, Lowry, Bobrow, Dembrow, Ingber and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 2 exhibits offered. Bench Trial continued until Thursday, 11/15/2013 at 10:00AM. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:04.) (Jackson, Kerrie) (Entered: 11/14/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial held on 11/15/2013. Dineen, Lowry, Bobrow, Dembrow, Ingber and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 7 exhibits offered. Bench Trial continued until Thursday, 11/18/2013 at 10:30AM (Court Reporter Karen Wischnowsky in Courtroom 1 at 9:50.) (Jackson, Kerrie) (Entered: 11/15/2013)
462 MOTION for William Kapell to Appear Pro Hac Vice filed by Danny B., Tracy L., Cassie M.. (Dineen, John) (Entered: 11/18/2013)
463 MOTION to Withdraw as Attorney Miriam Ingber as Counsel of Record filed by Danny B., Tracy L., Cassie M.. Responses due by 12/5/2013 (Ingber, Miriam) (Entered: 11/18/2013)
464 APPLICATION FOR ADMISSION PRO HAC VICE re 462 MOTION for William Kapell to Appear Pro Hac Vice by Danny B., Tracy L., Cassie M. NOTICE: In order to view this document, you must first log in using your CMECF Filer login. . (Duhamel, John) (Entered: 11/18/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 5) held on 11/18/2013. Dineen, Lowry, Bobrow, Dembrow and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 14 exhibits offered. Bench Trial continued until Tuesday, 11/19/2013 at 9:30 am. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:40.) (Jackson, Kerrie) (Entered: 11/18/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial(DAY 6) held on 11/19/2013. Dineen, Lowry, Bobrow, Dembrow and Lustbader for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 9 exhibits offered. Bench Trial continued until Wednesday, 11/20/2013 at 10:00 am.. (Court Reporter Karen Wischnowsky in Courtroom 1 at 9:35.) (Jackson, Kerrie) (Entered: 11/19/2013)

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Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 7) held on 11/20/2013. Dineen, Lowry, Bobrow, Dembrow, Lustbader and Kapell for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. Motion for William Kapell to appear PHV is granted. Motion to withdraw as Attorney Miriam Ingber as Counsel of Record is granted. 1 witness. 20 exhibits offered. Bench Trial continued until Thursday, 11/20/2013 at 10:15 am.. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:02.) (Jackson, Kerrie) (Entered: 11/20/2013)
TEXT ORDER granting 462 Motion to Appear Pro Hac Vice of William Kapell; granting 463 Motion of Miriam F. Ingber to Withdraw as Attorney. Attorney Miriam F. Ingber terminated. So Ordered by Chief Judge Mary M. Lisi on 11/21/2013. (Duhamel, John) (Entered: 11/21/2013)
Minute Entry for proceedings held before Chief Judge Mary M. Lisi: Bench Trial (DAY 8) held on 11/21/2013. Bobrow, Dembrow, Lustbader and Kapell for Plaintiff. Yaffe, Baum, Mullaney and Kelly for Defendant. Court addresses. 1 witness. 15 exhibits offered. Bench Trial continued until Monday, 12/9/2013 at 10:00 AM. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:22.) (Jackson, Kerrie) (Entered: 11/21/2013)
465 TRANSCRIPT ORDER for proceedings held on 11/12/2013 11/21/2013 before Judge Mary M. Lisi.. (Lustbader, Ira) (Entered: 11/22/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 9) held on 12/9/2013. Marcia R. Lowry, Ira P. Lustbader and William Kapell for the Plaintiff. Brenda D. Baum, Neil F.X. Kelly and Ariele Yaffee for the Defendant's. 1 witness. 8 exhibits offered. Bench Trial continued until Tuesday, 12/10/2013 at 11:00. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 11:23.) (Jackson, Kerrie) (Entered: 12/10/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 10) held on 12/10/2013. Marcia R. Lowry and Ira P. Lustbader for the Plaintiff's. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendant's. Court addresses. Oral Motion, by Plaintiff, to voluntarily dismiss Tracy L. without prejudice. Defendant objects to motion. Motion granted. 1 witness. Bench Trial to continue to Wednesday, 12/11/2013 at 9:30 am.. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 11:00.) (Jackson, Kerrie) (Entered: 12/10/2013)
ORAL MOTION to Dismiss, voluntarily, claims as to Tracie L., without prejudice. Responses due by 12/27/2013 (Jackson, Kerrie) (Entered: 12/11/2013)

12/10/2013 12/11/2013 12/12/2013 12/16/2013 12/17/2013 12/18/2013 12/19/2013 12/19/2013

TEXT ORDER granting ORAL Motion to Dismiss, voluntarily, claims as to Tracie L., without prejudice. So Ordered by Judge Mary M. Lisi on 12/10/2013. (Jackson, Kerrie) (Entered: 12/11/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAT 11) held on 12/11/2013. Marcia R. Lowry and Ira P. Lustbader for the Plaintiffs. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendants. Court addresses. 1 witness. 7 exhibits offered and sealed. Trial to continue to Thursday, 12/12/2013 at 11:000 am. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 9:39.) (Jackson, Kerrie) (Entered: 12/11/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 12) held on 12/12/2013. Marcia R. Lowry, Ira P. Lustbader and John W. Dineen for the Plaintiffs. Brenda D. Baum, Neil F.X. Kelly, ariele Yaffee and Edward G. Mullaney for the Defendants. 1 witness. 14 exhibits offered. Bench Trial continued until Monday, 12/16/2013 at 9:30AM. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 11:06.) (Jackson, Kerrie) (Entered: 12/12/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 13) held on 12/16/2013. William Kapell, Ira P. Lustbader and John Dineen for the Plaintiffs. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendants. One witness. 33 exhibits offered. Bench Trial continued until Tuesday, 12/17/2013 at 10:00. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 9:40.) (Jackson, Kerrie) (Entered: 12/17/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 14) held on 12/17/2013. William Kapell, Ira P. Lustbader and John Dineen for the Plaintiffs. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendants. One witness. 15 exhibits offered. Bench Trial continued until Wednesday, 12/18/2013 at 9:00AM. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:45.) (Jackson, Kerrie) (Entered: 12/17/2013)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 15) held on 12/18/2013. William Kapell, Ira P. Lustbader and John Dineen for the Plaintiffs. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendants. One witness. 13 exhibits offered. Bench Trial continued until Wednesday, 1/8/2014 at 10:00AM. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 9:02.) (Jackson, Kerrie) (Entered: 12/18/2013)
466 TRANSCRIPT ORDER for proceedings held on 12/9/2013 - 12/18/2013 before Judge Mary M. Lisi.. (Lustbader, Ira) (Entered: 12/19/2013)
467 TRANSCRIPT of Bench Trial, Volume I, held on November 12, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky,

12/19/2013 12/19/2013 12/19/2013 12/19/2013

Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
468 TRANSCRIPT of Bench Trial, Volume IV, held on November 15, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
469 TRANSCRIPT of Bench Trial, Volume V, held on November 18, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
470 TRANSCRIPT of Bench Trial, Volume VII, held on November 20, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
471 TRANSCRIPT of Bench Trial, Volume VIII, held on November 21, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen

12/19/2013 12/19/2013 12/19/2013 12/31/2013

Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
472 TRANSCRIPT of Bench Trial, Volume II, held on November 13, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
473 TRANSCRIPT of Bench Trial, Volume III, held on November 14, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
474 TRANSCRIPT of Bench Trial, Volume VI, held on November 19, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/9/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/19/2014. (Wischnowsky, Karen) (Entered: 12/19/2013)
475 TRANSCRIPT ORDER for proceedings held on 12/9/2013 to 12/18/2013 before Judge Lisi.. (Kelly, Neil) (Entered: 12/31/2013)

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NOTICE: Bench Trial previously set to resume on Wednesday, 1/8/2014, will instead resume on Thursday, 1/9/2014 at 10:00 a.m. -- Counsel have been notified by e-mail of cancellation of the 1/8/2014 session. (Duhamel, John) (Entered: 01/07/2014)
476 TRANSCRIPT of Bench Trial, Volume IX, held on December 9, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
477 TRANSCRIPT of Bench Trial, Volume X, held on December 10, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
478 TRANSCRIPT of Bench Trial, Volume XI, held on December 11, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
479 TRANSCRIPT of Bench Trial, Volume XII, held on December 12, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other

01/07/2014
01/07/2014
01/07/2014
01/09/2014 01/09/2014

redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
480 TRANSCRIPT of Bench Trial, Volume XIII, held on December 16, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
481 TRANSCRIPT of Bench Trial, Volume XIV, held on December 17, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
482 TRANSCRIPT of Bench Trial, Volume XV, held on December 18, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/28/2014. Redacted Transcript Deadline set for 2/7/2014. Release of Transcript Restriction set for 4/7/2014. (Wischnowsky, Karen) (Entered: 01/07/2014)
483 TRANSCRIPT ORDER for proceedings held on 1/9/2014 before Judge Mary M. Lisi.. (Lustbader, Ira) (Entered: 01/09/2014)
Minute Entry for proceedings held before Judge Mary M. Lisi: Bench Trial (DAY 16) held on 1/9/2014. Ira P. Lustbader and John Dineen for the Plaintiff. Brenda D. Baum, Neil F.X. Kelly, Ariele Yaffee and Edward G. Mullaney for the Defendants. 1 Witness. 26 Exhibits offered.

01/09/2014 01/09/2014 01/10/2014
01/10/2014
01/10/2014

Oral motion made by defendants under Rule 52 for Judgment as to all claims. Motion granted in part to contract claim. Defendants have until Thursday, 1/30/2014 to file Brief. Plaintiffs have until Thursday, 2/20/2014 to respond. Both sides are limited to 50 pages. Recess. (Court Reporter Karen Wischnowsky in Courtroom 1 at 10:13.) (Jackson, Kerrie) Modified on 1/10/2014 (Jackson, Kerrie). (Entered: 01/10/2014)
ORAL MOTION to Move under Rule 52 for Judgment as to all Claims, by defendants. Responses due by 1/27/2014 (Jackson, Kerrie) Modified on 1/13/2014 as to motion description (Jackson, Kerrie). (Entered: 01/10/2014)
ORAL ORDER granting in part to Contract Claim as to Rule 52. So Ordered by Judge Mary M. Lisi on 12/9/2014. (Jackson, Kerrie) Modified on 1/13/2014 (Jackson, Kerrie). Modified on 1/13/2014 (Jackson, Kerrie). (Entered: 01/10/2014)
484 CORRECTED TRANSCRIPT of Bench Trial, Volume VII, held on November 20, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/31/2014. Redacted Transcript Deadline set for 2/10/2014. Release of Transcript Restriction set for 4/10/2014. (Wischnowsky, Karen) (Entered: 01/10/2014)
485 CORRECTED TRANSCRIPT of Bench Trial, Volume VIII, held on November 21, 2013, before Chief Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 1/31/2014. Redacted Transcript Deadline set for 2/10/2014. Release of Transcript Restriction set for 4/10/2014. (Wischnowsky, Karen) (Entered: 01/10/2014)
486 CORRECTED TRANSCRIPT of Bench Trial, Volume XI, held on December 11, 2013, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All

01/13/2014 01/14/2014 01/14/2014 01/15/2014
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other redactions must be requested by motion.. Redaction Request due 1/31/2014. Redacted Transcript Deadline set for 2/10/2014. Release of Transcript Restriction set for 4/10/2014. (Wischnowsky, Karen) (Entered: 01/10/2014)
487 NOTICE by Danny B., Cassie M. Plaintiffs' Proposed Order (Lustbader, Ira) (Entered: 01/13/2014)
488 TRANSCRIPT ORDER for proceedings held on 1/9/14 before Judge Lisi.. (Kelly, Neil) (Entered: 01/14/2014)
489 STIPULATION by All Parties. (Kelly, Neil) (Entered: 01/14/2014)
TEXT ORDER entering 489 Stipulation re Family Service Unit caseworkers and casework supervisors assigned to named Plaintiffs. So Ordered by Judge Mary M. Lisi on 1/15/2014. (Duhamel, John) (Entered: 01/15/2014)
490 NOTICE of Withdrawal of Plaintiffs' 487 Proposed Order by Danny B., Cassie M. (Lustbader, Ira) (Entered: 01/15/2014)
491 TRANSCRIPT of Bench Trial, Volume XVI, held on January 9, 2014, before Judge Mary M. Lisi. Court Reporter Karen Wischnowsky, Telephone number 401-529-7406. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 2/12/2014. Redacted Transcript Deadline set for 2/24/2014. Release of Transcript Restriction set for 4/22/2014. (Wischnowsky, Karen) (Entered: 01/22/2014)
492 Transcript Redaction Request re 482 Transcript,, 480 Transcript,, 477 Transcript,, 486 Transcript,, by attorney Ira P. Lustbader. (Lustbader, Ira) (Entered: 01/28/2014)
493 Redacted Transcript of 477 Transcript,,. (Wischnowsky, Karen) (Entered: 01/29/2014)
494 Redacted Transcript of 486 Transcript,,. (Wischnowsky, Karen) (Entered: 01/29/2014)
495 Redacted Transcript of 480 Transcript,,. (Wischnowsky, Karen) (Entered: 01/29/2014)
496 Redacted Transcript of 482 Transcript,,. (Wischnowsky, Karen) (Entered: 01/29/2014)
497 MOTION for Judgment on Partial Findings Pursuant to Rule 52 WITH SUPPORTING MEMO filed by All Defendants. Responses due by

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05/15/2014 05/15/2014 05/15/2014
05/27/2014

2/18/2014 (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 01/30/2014)
498 RESPONSE in Opposition re 497 MOTION for Judgment on Partial Findings Pursuant to Rule 52 filed by Danny B., Cassie M.. (Lustbader, Ira) (Entered: 02/20/2014)
499 MEMORANDUM AND ORDER granting Defendants' 497 Motion for Judgment on Partial Findings, pursuant to Fed. R. Civ. P. 52(c). -- The clerk is directed to enter judgment to enter in favor of the Defendants.-So Ordered by Judge Mary M. Lisi on 4/30/2014. (Duhamel, John) (Entered: 04/30/2014)
500 JUDGMENT in favor of Defendants against Plaintiffs pursuant to 499 Memorandum and Order. Entered by Deputy Clerk on 4/30/2014. (Duhamel, John) (Entered: 04/30/2014)
501 Exhibit/Witness List from Bench Trial 11/12/2013 - 1/9/2014.(Jackson, Kerrie) (Main Document 501 replaced on 6/4/2014) (Jackson, Kerrie). (Entered: 05/13/2014)
502 MOTION to Seal Documents: Exhibits in Support of Defendants' 503 Bill of Costs filed by All Defendants. (Duhamel, John) (Entered: 05/14/2014)
503 BILL OF COSTS by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino, Janice E. DeFrances. (Attachments: # 1 Affidavit Neil F.X. Kelly, # 2 Affidavit Margaret Farrish, # 3 Supporting Memorandum, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7)(Kelly, Neil) (Entered: 05/14/2014)
504 ORDER granting 502 Motion to Seal Documents: Exhibits in Support of Defendants' 503 Bill of Costs. So Ordered by Judge Mary M. Lisi on 5/15/2014. (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 05/15/2014)
506 Supplemental MOTION to Seal Document: An Exhibit in Support of Defendants' 503 Bill of Costs filed by All Defendants. (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 05/15/2014)
507 ORDER granting 506 Supplemental Motion to Seal Document: An Exhibit in Support of Defendants' 503 Bill of Costs. So Ordered by Judge Mary M. Lisi on 5/15/2014. (Duhamel, John) (Additional attachment(s) added on 8/3/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 05/15/2014)
509 TRANSCRIPT of Proceedings held on 5-10-13 before Judge Almond. Court Reporter/Transcriber Joseph A. Fontes, Telephone number 561452-7507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for

05/29/2014

Release of Transcript Restriction. After that date it may be obtained through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 6/17/2014. Redacted Transcript Deadline set for 6/27/2014. Release of Transcript Restriction set for 8/25/2014. (Fontes, Joseph) (Entered: 05/27/2014)
510 NOTICE OF APPEAL as to 230 Order on Motion for Protective Order, Order on Motion to Compel, 500 Clerk's Judgment, Order on Motion to Certify Class, 278 Order, 499 Order on Motion for Judgment on Partial Findings, 366 Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief, Order on Motion for Discovery; by Danny B., Cassie M.

05/30/2014
05/30/2014 05/30/2014 05/30/2014 05/30/2014 06/02/2014 06/02/2014

NOTICE TO COUNSEL: Counsel should register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf/. Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf Appeal Record due by 6/5/2014. (Kapell, William) (Entered: 05/29/2014)
511 CLERK'S CERTIFICATE AND APPELLATE COVER SHEET: Abbreviated record on appeal consisting of notice of appeal, order(s) being appealed, and a certified copy of the district court docket report transmitted to the U.S. Court of Appeals for the First Circuit in accordance with 1st Cir. R. 11.0(b). 510 Notice of Appeal. Documents Sent: 230, 278, 366, 499, 500. (Jackson, Kerrie) (Entered: 05/30/2014)
512 USCA Appeal Fees received $ 505 receipt number 14670013537 re 510 Notice of Appeal. (Jackson, Kerrie) (Entered: 05/30/2014)
USCA Case Number 14-1585 for 510 Notice of Appeal. (Jackson, Kerrie) (Entered: 05/30/2014)
513 RESPONSE IN OPPOSITION by Danny B., Cassie M. re 503 Bill of Costs, . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kapell, William) (Entered: 05/30/2014)
Forwarded to Chambers of Judge Lisi: 503 Bill of Costs and 513 Objection thereto. (Duhamel, John) (Entered: 05/30/2014)
514 MOTION to Seal Documents: Exhibits "A" and "B" to Plaintiffs' 513 Opposition to Defendants' 503 Bill of Costs filed by Danny B., Cassie M. (Duhamel, John) (Entered: 06/02/2014)
TEXT ORDER granting 514 Motion to Seal Documents: Exhibits "A" and "B" to Plaintiffs' 513 Opposition to Defendants' 503 Bill of Costs. So

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05/14/2015 05/14/2015 05/27/2015

Ordered by Judge Mary M. Lisi on 6/2/2014. (Duhamel, John) (Entered: 06/02/2014)
516 MOTION to Seal Document: Exhibit "8" in support of Defendants' 503 Bill of Costs filed by All Defendants. (Duhamel, John) (Entered: 06/06/2014)
517 RESPONSE in Opposition re 516 MOTION to Seal Document Exhibit "8" in support of Defendants' 503 Bill of Costs filed by Danny B., Cassie M.. (Kapell, William) (Entered: 06/06/2014)
518 REPLY MEMORANDUM re 513 Response in Opposition to 503 Bill of Costs . (Attachments: # 1 Exhibit 8, # 2 Exhibit 9)(Baum, Brenda) (Entered: 06/06/2014)
519 REPLY to Response to Motion re 517 Response in Opposition to 516 Motion to file under seal filed by All Defendants. (Baum, Brenda) (Entered: 06/11/2014)
520 OPINION of the U.S. Court of Appeals for the First Circuit entered as to 510 Notice of Appeal filed by Danny B., Cassie M. (Duhamel, John) (Entered: 04/21/2015)
521 JUDGMENT of the U.S. Court of Appeals for the First Circuit entered as to 510 Notice of Appeal filed by Danny B., Cassie M. -THE 500 JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE MATTER IS REMANDED FOR FURTHER PROCEEDINGS. Costs are taxed in favor of the plaintiffs-appellants. (Duhamel, John) (Entered: 04/21/2015)
522 MANDATE of the U.S. Court of Appeals for the First Circuit issued as to and in accordance with 521 Judgment of the U.S. Court of Appeals for the First Circuit re 510 Notice of Appeal filed by Danny B., Cassie M. -THE 500 JUDGMENT OF THE DISTRICT COURT IS VACATED, AND THE MATTER IS REMANDED FOR FURTHER PROCEEDINGS. (Duhamel, John) (Entered: 05/14/2015)
Case randomly reassigned to Chief Judge William E. Smith. Judge Mary M. Lisi no longer assigned to the case. (Case remanded by USCA) (Duhamel, John) (Entered: 05/14/2015)
NOTICE of Hearing: In Chambers/Status Conference scheduled for 5/27/2015 at 4:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 05/14/2015)
Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference held on 5/27/2015; counsel present: S. Bartosz; J. Rosenthal; A. Luciano; J. Dineen; B. Baum; A. Yaffee; N. Kelly (Jackson, Ryan) Modified on 6/8/2015 to correct date the chambers conference was held (Urizandi, Nisshy). (Entered: 05/28/2015)

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06/22/2015
06/25/2015

NOTICE of Hearing: In Chambers Conference scheduled for 6/25/2015 at 4:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 05/29/2015)
TEXT ORDER OF RECUSAL. Magistrate Judge Lincoln D. Almond recused. Case reassigned to Magistrate Judge Patricia A. Sullivan for all further referrals. So Ordered by Magistrate Judge Lincoln D. Almond on 5/29/2015. (Noel, Jeannine) (Entered: 05/29/2015)
523 MOTION to Withdraw as Attorney Marcia Robinson Lowry, Ira P. Lustbader, and William Kapell, and for Permission To Admit One Additional Attorney Pro Hac Vice, and To Admit Sara Bartosz, Rachel Brodin Nili, Adriana Luciano, and Joshua Rosenthal Pro Hac Vice as Counsel of Record filed by Cassie M.. Responses due by 6/19/2015 (Kapell, William) (Entered: 06/02/2015)
524 MOTION for Sara Michelle Bartosz to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103-849861 ) filed by Cassie M.. (Dineen, John) (Entered: 06/02/2015)
525 MOTION for Rachel Brodin Nili to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103-849862 ) filed by Cassie M.. (Dineen, John) (Entered: 06/02/2015)
526 MOTION for Joshua M. Rosenthal to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103-849863 ) filed by Cassie M.. (Dineen, John) (Entered: 06/02/2015)
527 MOTION for Adriana Teresa Luciano to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103-849864 ) filed by Cassie M.. (Dineen, John) (Entered: 06/02/2015)
TEXT ORDER granting 523 Motion to Withdraw as Attorney and granting Permission to Admit an Additional Attorney pro hac vice; Attorneys Ira P. Lustbader, William Kapell, and Marcia Robinson Lowry terminated. So Ordered by Chief Judge William E. Smith on 6/12/15. (Jackson, Ryan) (Entered: 06/12/2015)
TEXT ORDER granting 524 Motion to Appear Pro Hac Vice of Sara Michelle Bartosz; granting 525 Motion to Appear Pro Hac Vice of Rachel Brodin Nili; granting 526 Motion to Appear Pro Hac Vice of Joshua M. Rosenthal; granting 527 Motion to Appear Pro Hac Vice of Adrianna Teresa Luciano. So Ordered by Chief Judge William E. Smith on 6/22/15. (Jackson, Ryan) (Entered: 06/22/2015)
Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference held on 6/25/2015; counsel present: S. Bartosz, J. Rosenthal, J. Dineen, A. Luciano, R. Nili; N. Kelly, B. Baum, A. Yaffee, E. Mullaney. (Jackson, Ryan) (Entered: 06/26/2015)

08/24/2015 08/24/2015
08/28/2015 08/31/2015 09/03/2015
09/04/2015 09/10/2015 09/21/2015 09/22/2015 09/23/2015

528 STIPULATION dismissing Danny B. by Cassie M.. (Bartosz, Sara) (Entered: 08/24/2015)
529 MOTION for Leave to File Document Third Amended Complaint for Injunctive and Declaratory Relief WITH SUPPORTING MEMO filed by Cassie M.. Responses due by 9/10/2015 (Attachments: # 1 Supporting Memorandum Memorandum in Support of Motion for Leave to File Third Amended Complaint, # 2 Exhibit Third Amended Complaint for Injunctive and Declaratory Relief)(Bartosz, Sara) (Entered: 08/24/2015)
530 ORDER Entering 528 Stipulation Dismissing Danny B. (Stipulated Order) filed by Cassie M., Gina Raimondo, et al. So Ordered by Chief Judge William E. Smith on 8/27/2015. (Jackson, Ryan) (Entered: 08/28/2015)
531 STIPULATION to Protect Confidential Information by Cassie M.. (Bartosz, Sara) (Entered: 08/31/2015)
533 ORDER entering 531 Stipulation. By agreement of the parties, it is hereby ordered that all personally identifying information concerning proposed Named Plaintiffs Andrew C. and Matthew R., including but not limited to legal names and dates of birth, shall be subject to the Confidentiality Order entered by this Court on April 25, 2012 [ECF No. 133]. So Ordered by Chief Judge William E. Smith on 9/3/2015. (Urizandi, Nisshy) (Entered: 09/04/2015)
532 MOTION for an Extension of Time To File A Response To Plaintiff's Motion For Leave To File A Third Amended Complaint filed by All Defendants. Responses due by 9/21/2015 (Baum, Brenda) (Entered: 09/04/2015)
TEXT ORDER granting 532 Motion for Extension of Time for defendants to Repond to Plaintiffs' 529 MOTION for Leave to File Third Amended Complaint for Injunctive and Declaratory Relief. So Ordered by Chief Judge William E. Smith on 9/10/15. (Jackson, Ryan) (Entered: 09/10/2015)
534 PLAINTIFF'S Exhibits Returned re Bench Trial beginning 11/12/2013 1/9/2014 and transcripts from 10/29/2013. (Jackson, Kerrie) (Additional attachment(s) added on 9/22/2015: # 1 Exhibit list) (Jackson, Kerrie). (Entered: 09/22/2015)
535 DEFENDANT'S Exhibits Returned (see attached exhibit list) re Bench Trial beginning 11/12/2013 - 1/9/2014 and transcripts from 10/31/2013. (Jackson, Kerrie) (Additional attachment(s) added on 9/22/2015: # 1 Exhibit List) (Jackson, Kerrie). (Entered: 09/22/2015)
536 RESPONSE to Motion re 529 MOTION for Leave to File Document Third Amended Complaint for Injunctive and Declaratory

09/23/2015 09/23/2015 10/01/2015 10/01/2015 10/02/2015 10/15/2015 10/15/2015
10/15/2015

Relief filed by Kevin J. Aucoin, Lincoln D. Chafee, Steven M. Costantino, Janice E. DeFrances. (Baum, Brenda) (Entered: 09/23/2015)
537 MOTION for an Extension of Time to File Motion for Class Certification filed by Cassie M.. Responses due by 10/13/2015 (Bartosz, Sara) (Entered: 09/23/2015)
538 STIPULATION allowing Defendants up to and including October 23, 2015 to respond to Plaintiffs' First Request for Production of Documents by All Defendants. (Baum, Brenda) (Entered: 09/23/2015)
TEXT ORDER granting 529 Motion for Leave to File Third Amended Complaint; Plaintiffs may file their complaint upon receipt of this order. So Ordered by Chief Judge William E. Smith on 10/1/2015. (Jackson, Ryan) (Entered: 10/01/2015)
TEXT ORDER granting 537 Plaintiffs' Motion for Extension of Time to File their Motion for Class Certification on or before 10/15/15. So Ordered by Chief Judge William E. Smith on 10/1/15. (Jackson, Ryan) (Entered: 10/01/2015)
539 AMENDED COMPLAINT Third Amended Complaint for Injunctive and Declaratory Relief against Kevin J. Aucoin, filed by Cassie M..(Bartosz, Sara) (Entered: 10/02/2015)
540 Joint MOTION for an Extension of Time Joint Motion to Extend Time to File Case Management Plan filed by Cassie M.. Responses due by 11/2/2015 (Bartosz, Sara) (Entered: 10/15/2015)
541 Third MOTION to Certify Class and Request Hearing WITH SUPPORTING MEMO filed by Cassie M.. Responses due by 11/2/2015 (Attachments: # 1 Supporting Memorandum Memorandum in Support of Plaintiffs' Third Motion for Class Certification)(Bartosz, Sara) (Entered: 10/15/2015)
542 DECLARATION re 541 Third MOTION to Certify Class and Request Hearing by Cassie M.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 31, # 31 Exhibit 32, # 32 Exhibit 33, # 33 Exhibit 34, # 34 Exhibit 35, # 35 Exhibit 36, # 36 Exhibit 38, # 37 Exhibit 40, # 38 Exhibit 41, # 39 Exhibit 42, # 40 Exhibit 43, # 41 Exhibit 44, # 42 Exhibit 45, # 43 Exhibit 46, # 44 Exhibit 48, # 45 Exhibit 49, # 46 Exhibit 50, # 47 Exhibit 54, # 48 Exhibit 61, # 49 Exhibit 62, # 50 Exhibit 63, # 51 Exhibit 64,

10/19/2015 10/21/2015 10/21/2015 10/21/2015 10/22/2015
10/22/2015
10/22/2015
10/22/2015
10/22/2015 10/30/2015
11/02/2015

# 52 Exhibit 66, # 53 Exhibit 67, # 54 Exhibit 68, # 55 Exhibit 69, # 56 Exhibit 70, # 57 Exhibit 71, # 58 Exhibit 72, # 59 Errata 73, # 60 Exhibit 74, # 61 Exhibit 75, # 62 Exhibit 76, # 63 Exhibit 77, # 64 Exhibit 78)(Bartosz, Sara) (Entered: 10/15/2015)
543 MOTION to Seal Document . (Urizandi, Nisshy) (Entered: 10/19/2015)
545 STIPULATION re 539 Amended Complaint by All Defendants. (Kelly, Neil) (Entered: 10/21/2015)
546 STIPULATION to File Fourth Amended Complaint by Cassie M.. (Attachments: # 1 Exhibit 1: Fourth Amended Complaint)(Bartosz, Sara) (Entered: 10/21/2015)
547 STIPULATION to Protect Confidential Information by Cassie M.. (Bartosz, Sara) (Entered: 10/21/2015)
TEXT ORDER granting 540 Joint Motion for Extension of Time to File Case Management Plan up to and including 11/5/15. So Ordered by Chief Judge William E. Smith on 10/22/2015. (Jackson, Ryan) (Entered: 10/22/2015)
TEXT ORDER Entering 545 Stipulation re: extending time to Respond re: 539 Amended Complaint and to be filed Fourth Amended Complaint filed by Lincoln D. Chafee, Kevin J. Aucoin, Janice E. DeFrances, Steven M. Costantino, Cassie M. So Ordered by Chief Judge William E. Smith on 10/22/2015. (Jackson, Ryan) (Entered: 10/22/2015)
548 STIPULED ORDER entering 546 Stipulated Order to file Fourth Amended Complaint; plaintiffs may file their proposed Fourth Amended Complaint upon receipt of this order. So Ordered by Chief Judge William E. Smith on 10/22/2015. (Jackson, Ryan) (Entered: 10/22/2015)
549 STIPULATED ORDER entering 547 Stipulated Order re: personally identifying information pursuant to 133 Confidentiality Order. So Ordered by Chief Judge William E. Smith on 10/22/2015. (Jackson, Ryan) (Entered: 10/22/2015)
550 AMENDED COMPLAINT Fourth Amended Complaint for Injunctive and Declaratory Relief against Kevin J. Aucoin, filed by Cassie M..(Bartosz, Sara) (Entered: 10/22/2015)
551 MOTION for an Extension of Time to Submit A Proposed Joint Case Management Order filed by All Defendants. Responses due by 11/16/2015 (Attachments: # 1 Exhibit A)(Baum, Brenda) (Entered: 10/30/2015)
552 RESPONSE in Opposition re 551 MOTION for an Extension of Time to Submit A Proposed Joint Case Management Order filed by Cassie M.. Replies due by 11/12/2015. (Bartosz, Sara) (Entered: 11/02/2015)

11/02/2015 11/02/2015
11/03/2015 11/05/2015 11/05/2015 11/06/2015 11/11/2015 11/11/2015 11/12/2015
11/12/2015

553 RESPONSE in Opposition re 541 Third MOTION to Certify Class and Request Hearing filed by All Defendants. Replies due by 11/12/2015. (Baum, Brenda) (Entered: 11/02/2015)
554 MOTION for an Extension of Time to File STATE'S MEMORANDUM OF LAW IN SUPPORT OF ITS OBJECTION TO PLAINTIFFS THIRD MOTION FOR CLASS CERTIFICATION AFTER PLAINTIFFS SUPPLEMENTAL BRIEFING filed by All Defendants. Responses due by 11/19/2015 (Baum, Brenda) (Entered: 11/02/2015)
TEXT ORDER granting 551 Motion for Extension of Time to Submit A Proposed Joint Case Management Order up to and including 12/11/15. So Ordered by Chief Judge William E. Smith on 11/3/2015. (Jackson, Ryan) (Entered: 11/03/2015)
555 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PLAINTIFFS' FOURTH AMENDED COMPLAINT filed by All Defendants. Responses due by 11/23/2015 (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 11/05/2015)
556 MOTION for an Extension of Time to File Answer TO PLAINTIFFS' FOURTH AMENDED COMPLAINT filed by All Defendants. Responses due by 11/23/2015 (Kelly, Neil) (Entered: 11/05/2015)
557 MOTION to Seal Document filed by All Defendants. (Urizandi, Nisshy) (Entered: 11/06/2015)
559 MOTION For Summary Denial of Defendants' Partial Motion to Dismiss WITH SUPPORTING MEMO filed by Cassie M.. Responses due by 11/30/2015 (Attachments: # 1 Supporting Memorandum)(Bartosz, Sara) (Entered: 11/11/2015)
560 MOTION for an Extension of Time to Respond to Defendants' Motion to Dismiss filed by Cassie M.. Responses due by 11/30/2015 (Bartosz, Sara) (Entered: 11/11/2015)
TEXT ORDER granting 554 Defendants' Motion for Extension of Time to File their Memorandum of Law in Support of their Objection to Plaintiffs' Third Motino for Class Certifcation until 21 days after the filing of Plaintiffs' supplemental pleading/briefing. So Ordered by Chief Judge William E. Smith on 11/12/2015. (Jackson, Ryan) (Entered: 11/12/2015)
TEXT ORDER granting 556 State's Motion for Extension of Time to Answer until 14 days after notice of the Court's decision on the pending motion to dismiss. So Ordered by Chief Judge William E. Smith on 11/12/2015. (Jackson, Ryan) (Entered: 11/12/2015)

11/19/2015 11/19/2015 11/19/2015
11/25/2015 12/07/2015 12/11/2015 12/15/2015 12/15/2015 12/16/2015 01/07/2016 01/15/2016

TEXT ORDER granting 543 Motion to Seal Document. So Ordered by Chief Judge William E. Smith on 11/19/2015. (Urizandi, Nisshy) (Entered: 11/19/2015)
TEXT ORDER granting 557 Motion to Seal Document. So Ordered by Chief Judge William E. Smith on 11/19/2015. (Urizandi, Nisshy) (Entered: 11/19/2015)
TEXT ORDER granting 560 Motion for Extension of Time to respond to 555 PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PLAINTIFFS' FOURTH AMENDED COMPLAINT. So Ordered by Chief Judge William E. Smith on 11/19/2015. (Jackson, Ryan) (Entered: 11/19/2015)
563 RESPONSE to Motion re 559 MOTION For Summary Denial of Defendants' Partial Motion to Dismiss with supporting memorandum filed by All Defendants. Replies due by 12/7/2015. (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 11/25/2015)
564 REPLY to Response to Motion re 563 Response to Motion, for Summary Denial of Defendants' Partial Motion to Dismiss filed by Cassie M.. (Bartosz, Sara) (Entered: 12/07/2015)
565 MOTION FOR ENTRY OF PROPOSED CASE MANAGEMENT ORDER by All Defendants. (Attachments: # 1 Exhibit Proposed Case Management Order, # 2 Exhibit Declaration)(Baum, Brenda) Modified on 12/14/2015 (Urizandi, Nisshy). (Entered: 12/11/2015)
566 CASE MANAGEMENT ORDER: Factual Discovery shall be completed by 7/14/2016; Expert Discovery shall be completed by 11/14/2016; additional dates as specified in the Order. So Ordered by Chief Judge William E. Smith on 12/15/2015. (Jackson, Ryan) (Entered: 12/15/2015)
NOTICE of Hearing: Status Conference scheduled for 3/10/2016 at 2:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 12/15/2015)
NOTICE of Hearing: Telephone Conference set for Thursday, 1/7/2016 at 02:30 PM before Judge John J. McConnell, Jr.; Call in instructions to be provided under separate cover(Barletta, Barbara) (Entered: 12/16/2015)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Telephone Conference held on 1/7/2016; counsel of record participated (Barletta, Barbara) Modified on 1/8/2016 to note that this conference was held on 1/7/16 (Barletta, Barbara). (Entered: 01/08/2016)
567 MOTION for Protective Order filed by All Defendants. Responses due by 2/1/2016 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Baum, Brenda) (Entered: 01/15/2016)

01/15/2016 01/21/2016 02/01/2016
02/05/2016 02/11/2016 02/25/2016 03/10/2016 03/14/2016
03/15/2016 03/29/2016 04/04/2016 04/06/2016

568 MOTION to Seal Document filed by All Defendants. (Urizandi, Nisshy) (Entered: 01/20/2016)
TEXT ORDER granting 568 Motion to Seal Document. So Ordered by Chief Judge William E. Smith on 1/21/2016. (Urizandi, Nisshy) (Entered: 04/19/2016)
571 RESPONSE in Opposition re 567 MOTION for Protective Order for Information of Non-Party Children and Families WITH SUPPORTING MEMO filed by Cassie M.. Replies due by 2/11/2016. (Attachments: # 1 Supporting Memorandum of Law in Opposition to Defendants' Motion for Protective Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Bartosz, Sara) (Entered: 02/01/2016)
TEXT ORDER: The parties shall submit their confidential mediation statements on or before February 12, 2016- So Ordered by Judge John J. McConnell, Jr. on 2/5/2016. (Barletta, Barbara) (Entered: 02/05/2016)
572 REPLY to Response to Motion re 571 Response in Opposition to Motion, filed by All Defendants. (Baum, Brenda) (Entered: 02/11/2016)
HEARING CANCELLED re: Status Conference previously scheduled for 3/10/2016 at 2:00 PM in Chambers before Chief Judge William E. Smith is hereby CANCELLED (Jackson, Ryan) (Entered: 02/25/2016)
NOTICE of Hearing: Settlement Conference set for Monday, 4/4/2016 at 09:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 03/10/2016)
TEXT ORDER: Judge McConnell will conduct settlement conferences in Chambers 211 on Monday, 4/4/16 at 9:30 a.m. The conferences may continue from day-to-day until completed. The defendants are required to have persons present with knowledge and authority from the Executive Office of Health and Human Services and the Department of Children and their Families- So Ordered by Judge John J. McConnell, Jr. on 3/14/2016. (Barletta, Barbara) (Entered: 03/14/2016)
573 STIPULATION to Extend Deadline for Plaintiffs to Respond to Defendants' First Request for Production of Documents by Cassie M.. (Luciano, Adrianna) (Entered: 03/15/2016)
574 STIPULATION re 550 Amended Complaint Dismissing Cassie M. from 4th Amended Complaint by All Defendants. (Baum, Brenda) (Entered: 03/29/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 4/4/2016; counsel of record participated (Barletta, Barbara) (Entered: 04/04/2016)
575 ORDER Entering 574 Stipulation re: 550 Amended Complaint Dismissing Cassie M. from 4th Amended Complaint filed by all parties.

04/12/2016 04/12/2016
05/10/2016 05/13/2016 05/13/2016 05/19/2016
05/19/2016 05/24/2016 06/10/2016

So Ordered by Chief Judge William E. Smith on 4/5/2016. (Jackson, Ryan) (Entered: 04/06/2016)
TEXT ORDER Extending All Deadlines in 566 CASE MANAGEMENT ORDER by 30 days. So Ordered by Chief Judge William E. Smith on 4/12/2016. (Jackson, Ryan) (Entered: 04/12/2016)
Reset Case Management Order Deadlines: Factual Discovery shall be completed on or before 8/14/2016; Plaintiffs' Expert Witness Disclosures due by 9/15/16; Defendants Expert Witness Disclosures due by 10/29/16; All Expert Discovery shall be completed on or before 12/14/2016; Plaintiffs shall supplement their Class Certification Motion by 1/13/17 and Defendants shall have 30 days thereafter to object or otherwise respond to Plaintiffs' Motion. (Jackson, Ryan) (Entered: 04/12/2016)
576 Assented MOTION for an Extension of Time to Complete Discovery filed by Kevin J. Aucoin, Gina M Raimondo, Elizabeth Roberts. Responses due by 5/27/2016 (Baum, Brenda) (Entered: 05/10/2016)
577 MOTION to Withdraw as Attorney Rachel B. Nili as Counsel of Record filed by Andrew C., Erin M., Sean M., Matthew R.. Responses due by 5/31/2016 (Nili, Rachel) (Entered: 05/13/2016)
578 MOTION for Elizabeth Pitman to Appear Pro Hac Vice ( filing fee paid $ 50.00, receipt number 0103-968982 ) filed by Andrew C., Erin M., Sean M., Matthew R.. (Dineen, John) (Entered: 05/13/2016)
TEXT ORDER granting 576 Motion for Extension of Time to Complete Discovery; Reset Deadlines: Factual Discovery will be completed by 9/14/2016, Plaintiffs' Expert Disclosures to be made by 10/15/16; Defendants' Expert Witness Disclosures to be made by 11/29/16; All Expert Discovery will be completed on or before 1/14/2017; Plaintiffs shall supplement their Class Certification Motion by 2/13/17 and Defendants shall have 30 days thereafter to object or otherwise respond to Plaintiffs' Motion. So Ordered by Chief Judge William E. Smith on 5/19/2016. (Jackson, Ryan) (Entered: 05/19/2016)
TEXT ORDER granting 577 Motion to Withdraw as Attorney. Attorney Rachel Brodin Nili terminated. So Ordered by Chief Judge William E. Smith on 5/19/2016. (Jackson, Ryan) (Entered: 05/19/2016)
579 NOTICE of Change of Address by Sara Michelle Bartosz (Bartosz, Sara) (Entered: 05/24/2016)
580 MOTION for an Extension of Time to Extend Document Production Deadline With Supporting Memo filed by All Defendants. Responses due by 6/27/2016 (Attachments: # 1 Exhibit A)(Baum, Brenda) (Entered: 06/10/2016)

06/13/2016
06/15/2016
06/16/2016 06/17/2016 06/17/2016 06/23/2016
07/07/2016 07/12/2016 07/13/2016 07/20/2016 07/25/2016 07/28/2016

581 RESPONSE to Motion re 580 MOTION for an Extension of Time to Extend Document Production Deadline filed by Andrew C., Sean M., Matthew R.. Replies due by 6/23/2016. (Rosenthal, Joshua) (Entered: 06/13/2016)
TEXT ORDER granting 580 Motion for Extension of Time to Extend Document Production Deadline up to and including 7/26/16. So Ordered by Chief Judge William E. Smith on 6/15/2016. (Jackson, Ryan) (Entered: 06/15/2016)
582 STIPULATION dismissing Named Plaintiff Erin M. by All Defendants. (Baum, Brenda) (Entered: 06/16/2016)
TEXT ORDER granting 578 Motion to Appear Pro Hac Vice of Elizabeth Pitman. So Ordered by Chief Judge William E. Smith on 6/17/2016. (Jackson, Ryan) (Entered: 06/17/2016)
NOTICE of Hearing: Settlement Conference set for Wednesday, 7/13/2016 at 09:00 AM in Judge McConnell Chambers - Room 211(Barletta, Barbara) (Entered: 06/17/2016)
TEXT ORDER Enteirng 582 Stipulation filed by Gina M Raimondo, Kevin J. Aucoin, Janice E. DeFrances, Steven M. Costantino, Elizabeth Roberts, Erin M. So Ordered by Chief Judge William E. Smith on 6/23/2016. (Jackson, Ryan) (Entered: 06/23/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 7/7/2016 with defendants (Barletta, Barbara) (Entered: 07/29/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 7/12/2016 with counsel of record (Barletta, Barbara) (Entered: 07/29/2016)
583 MOTION to Withdraw as Attorney Adriana Luciano as Counsel of Record filed by Andrew C., Sean M., Matthew R.. Responses due by 8/1/2016 (Luciano, Adriana) (Entered: 07/13/2016)
584 Joint MOTION for an Extension of Time to Complete Discovery filed by All Defendants. Responses due by 8/8/2016 (Baum, Brenda) (Entered: 07/20/2016)
NOTICE of Hearing: Settlement Conference set for Monday, 8/1/2016 at 09:00 AM in Judge McConnell Chambers - Room 211(Barletta, Barbara) (Entered: 07/25/2016)
NOTICE of Hearing: Settlement Conference set for Monday, 8/1/2016 at 09:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 07/28/2016)

07/28/2016 07/28/2016 08/02/2016 08/02/2016 08/02/2016 08/11/2016 08/18/2016 08/19/2016
08/23/2016 08/23/2016

REVISED NOTICE OF HEARING: Settlement Conference set for Monday, 8/1/2016 at 10:00 AM in Judge McConnell Chambers - Room 211; PLEASE NOTE TIME CHANGE (Barletta, Barbara) (Entered: 07/28/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 7/28/2016 with plaintiffs (Barletta, Barbara) (Entered: 07/29/2016)
TEXT ORDER granting 583 Motion to Withdraw as Attorney. Attorney Adriana Teresa Luciano terminated. So Ordered by Chief Judge William E. Smith on 8/2/2016. (Jackson, Ryan) (Entered: 08/02/2016)
TEXT ORDER granting 584 Motion for Extension of Time to Complete Discovery and to Schedule a Teleconference; notice of telephonic hearing to follow. So Ordered by Chief Judge William E. Smith on 8/2/2016. (Jackson, Ryan) (Entered: 08/02/2016)
NOTICE of Hearing: Telephone Conference scheduled for Thursday 8/18/2016 at 3:00 PM before Chief Judge William E. Smith; call-in information will be sent to all counsel of record via email. (Jackson, Ryan) (Entered: 08/02/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 8/1/2016. (Barletta, Barbara) Modified on 8/11/2016 to correct date of conference (Barletta, Barbara). (Entered: 08/11/2016)
Minute Entry for proceedings held before Chief Judge William E. Smith: Telephone Conference held on 8/18/2016; counsel present on call: S. Bartosz, J. Rosenthal, E. Pitman; N. Kelly, B. Baum, K. Aucoin, E. Mulaney. (Jackson, Ryan) (Entered: 08/19/2016)
TEXT ORDER Suspending all Discovery and Pretrial Deadlines: In light of the parties' ongoing settlement efforts with Judge John J. McConnell, the current discovery and pretrial deadlines are suspended indefinitely. In the event the parties reach an impasse in their settlement negotiations, the Court will convene a conference to establish new discovery and pretrial deadlines; before any such conference the parties will meet and confer about those extended deadlines. So Ordered by Chief Judge William E. Smith on 8/19/2016. (Jackson, Ryan) (Entered: 08/19/2016)
HEARING CANCELLED: The settlement conference with all parties scheduled for Wednesday, 8/31/16 in Judge John J. McConnell Chambers 211 is cancelled and will be rescheduled (Barletta, Barbara) (Entered: 08/23/2016)
NOTICE of Hearing: Settlement Conference is RESET to Tuesday, 9/6/2016 at 09:30 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 08/23/2016)

08/23/2016
09/06/2016 09/08/2016 09/13/2016 10/07/2016
10/13/2016 11/09/2016 11/09/2016 11/10/2016 11/14/2016 11/28/2016 11/28/2016

REVISED NOTICE OF HEARING: Settlement Conference set for Tuesday, 9/6/2016 at 10:00 AM in Judge McConnell Chambers - Room 211; PLEASE NOTE TIME CHANGE(Barletta, Barbara) (Entered: 08/23/2016)
Minute Entry for proceedings held before Judge John J. McConnell, Jr.: Settlement Conference held on 9/6/2016 with counsel of record (Barletta, Barbara) (Entered: 09/08/2016)
NOTICE of Hearing: Settlement Conference set for Thursday, 10/13/2016 at 09:00 AM in Judge McConnell Chambers - Room 211(Barletta, Barbara) (Entered: 09/08/2016)
REVISED NOTICE of Hearing: Settlement Conference with all parties is RESET to Tuesday, 10/11/2016 at 09:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 09/13/2016)
HEARING CANCELLED: The Settlement conference scheduled for Tuesday, 10/11/16 at 9:00 a.m. in Judge McConnell Chambers 211 is cancelled and will be rescheduled (Barletta, Barbara) (Entered: 10/07/2016)
REVISED NOTICE of Hearing: Settlement Conference is RESET to Wednesday, 11/9/2016 at 09:30 AM in Judge McConnell Chambers Room 211(Barletta, Barbara) (Entered: 10/13/2016)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 11/9/2016; counsel of record present (Barletta, Barbara) (Entered: 11/09/2016)
NOTICE of Hearing: Settlement Conference set for Friday, 11/10/2016 at 11:15 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 11/09/2016)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 11/10/2016; counsel of record present (Barletta, Barbara) (Entered: 11/14/2016)
NOTICE of Hearing: Settlement Conference set for Monday, 11/28/2016 at 09:30 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 11/14/2016)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 11/28/2016 with counsel of record present (Barletta, Barbara) (Entered: 11/28/2016)
NOTICE of Hearing: Settlement Conference set for Tuesday, 11/29/2016 at 10:30 AM in Judge McConnell Chambers - Room 211(Barletta, Barbara) (Entered: 11/28/2016)

11/29/2016 11/29/2016 12/07/2016 12/12/2016 12/12/2016 01/10/2017 01/11/2017 01/20/2017 01/20/2017 02/03/2017 02/08/2017 02/15/2017

Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 11/29/2016 with counsel of record present (Barletta, Barbara) (Entered: 11/29/2016)
NOTICE of Hearing: Settlement Conference set for Wednesday, 11/30/2016 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 11/29/2016)
NOTICE of Hearing: Settlement Meeting WITH DEFENDANTS ONLY on Wednesday, 12/14/2016 at 02:00 PM at the Attorney General's Office (Barletta, Barbara) (Entered: 12/07/2016)
NOTICE of Hearing: Settlement Meeting WITH PLAINTIFFS ONLY set for Thursday, 12/15/2016 at 02:30 PM in Judge McConnell Chambers - Room 211(Barletta, Barbara) (Entered: 12/12/2016)
HEARING CANCELLED: The settlement meeting with Defendants only scheduled for 12/15/16 and the settlement meeting with Plaintiffs only scheduled for 12/14/16 are cancelled (Barletta, Barbara) (Entered: 12/12/2016)
NOTICE of Hearing: Settlement meeting WITH DEFENDANTS ONLY set for Thursday, 1/26/2017 at 10:30 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 01/10/2017)
NOTICE of Hearing: Settlement Meeting WITH PLAINTIFFS ONLY set for Friday, 2/3/2017 at 10:00 AM in Judge McConnell Chambers Room 211 (Barletta, Barbara) (Entered: 01/11/2017)
HEARING CANCELLED: Settlement meetin WITH DEFENDANTS ONLY scheduled for Thursday, 1/26/17 at 10:00 a.m. in Judge John J. McConnell, Jr. Chambers 211 is cancelled and will be rescheduled (Barletta, Barbara) (Entered: 01/20/2017)
REVISED NOTICE of Hearing: Settlement Meeting WITH DEFENDANTS ONLY is RESET, to Thursday, 2/9/2017 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 01/20/2017)
REVISED NOTICE of Hearing: Settlement Conference WITH PLAINTIFFS ONLY is RESET to Friday, 2/17/2017 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 02/03/2017)
Reset Hearings: Settlement Meeting WITH DEFENDANTS ONLY is RESET to Thursday, 2/16/2017 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 02/08/2017)
NOTICE of Hearing: Settlement Conference WITH ALL PARTIES set for Friday, 2/24/2017 at 10:00 AM in Judge McConnell Chambers Room 211 (Barletta, Barbara) (Entered: 02/15/2017)

02/16/2017 02/17/2017 02/24/2017 02/24/2017 03/03/2017 03/03/2017 03/08/2017 04/06/2017 04/06/2017 04/28/2017 06/22/2017 06/22/2017

Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference with Defendants held on 2/16/2017; counsel of record present (Barletta, Barbara) (Entered: 02/17/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference with Plaintiffs only held on 2/17/2017; counsel of record participated (Barletta, Barbara) (Entered: 02/17/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 2/24/2017; counsel of record participated (Barletta, Barbara) (Entered: 02/24/2017)
NOTICE of Hearing: Settlement Conference with all parties set for Thursday, 3/2/2017 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 02/24/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 3/2/2017; counsel of record participated (Barletta, Barbara) (Entered: 03/03/2017)
NOTICE of Hearing: Settlement Conference set for Wednesday, 3/8/2017 at 10:30 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 03/03/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 3/8/2017; Counsel of record participated (Barletta, Barbara) (Entered: 03/09/2017)
NOTICE of Hearing: Settlement Conference set for Tuesday, 5/2/2017 at 10:00 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 04/06/2017)
Reset Hearings: Settlement Conference is RESET to Friday, 4/28/2017 at 10:30 AM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 04/06/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 4/28/2017; counsel of record present (Barletta, Barbara) Modified on 5/1/2017 to correct date of conference (Barletta, Barbara). (Entered: 05/01/2017)
NOTICE of Hearing: Telephone Conference with Defendants only set for Wednesday, 6/28/2017 at 02:00 PM before District Judge John J. McConnell, Jr.; Kindly provide clerk at 401-752-7202 with contact information prior to conference(Barletta, Barbara) (Entered: 06/22/2017)
NOTICE of Hearing: Telephone Conference with Plaintiffs only set for Wednesday, 6/28/2017 before District Judge John J. McConnell, Jr.;

06/22/2017 06/22/2017
06/28/2017 06/30/2017 07/10/2017 07/17/2017 07/17/2017
07/21/2017 08/01/2017 08/01/2017 08/07/2017

Kindly provide clerk at 401-752-7202 with contact information prior to the conference (Barletta, Barbara) (Entered: 06/22/2017)
NOTICE of Hearing: Settlement Conference with all parties set for Friday, 6/30/2017 at 01:00 PM in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 06/22/2017)
CORRECTED Notice of Hearing: Telephone Conference with Plaintiffs only is set for Wednesday, 6/28/2017 at 03:00 PM before District Judge John J. McConnell, Jr.; Kindly provide clerk at 401-752-7202 with contact information prior to the conference (Barletta, Barbara) (Entered: 06/22/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Telephone Conferences held on 6/28/2017; Counsel of record participated (Barletta, Barbara) (Entered: 06/28/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 6/30/2017; Counsel of record participated (Barletta, Barbara) (Entered: 07/10/2017)
NOTICE of Hearing: Settlement Conference set for Monday, 7/17/2017 at 12:00 p.m. in Judge McConnell Chambers - Room 211 (Barletta, Barbara) (Entered: 07/10/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Settlement Conference held on 7/17/2017; counsel of record participated (Barletta, Barbara) (Entered: 07/17/2017)
NOTICE of Hearing: Telephone Conference set for Tuesday, 8/1/2017 at 08:30 AM in before District Judge John J. McConnell, Jr.; Court to initiate call; counsel to provide telephone contact information to clerk at 401-752-7202 if it differs from the docket sheet(Barletta, Barbara) (Entered: 07/17/2017)
REVISED NOTICE of Hearing: Telephone Conference set for Tuesday, 8/1/2017 at 08:30 AM before District Judge John J. McConnell, Jr.; Call in instructions will be provided to counsel (Barletta, Barbara) (Entered: 07/21/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Telephone Conference held on 8/1/2017; counsel of record participated (Barletta, Barbara) (Entered: 08/01/2017)
NOTICE of Hearing: Telephone Conference set for Monday, 8/7/2017 at 09:00 AM before District Judge John J. McConnell, Jr.; Call in instructions to be provided (Barletta, Barbara) (Entered: 08/01/2017)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Telephone Conference held on 8/7/2017; Counsel of record participated (Barletta, Barbara) (Entered: 08/08/2017)

08/15/2017 08/22/2017 08/25/2017
09/27/2017 09/27/2017 10/03/2017 12/06/2017 12/07/2017 12/19/2017 01/08/2018

NOTICE of Hearing: Settlement Conference set for 8/24/2017 at 01:30 PM in Judge McConnell Chambers - Room 211; the settlement conference shall continue on Friday, 8/25/17 if necessary(Barletta, Barbara) (Entered: 08/15/2017)
HEARING CANCELLED: The Settlement Conference scheduled for Thursday, 8/24/17 at 1:30 p.m. before Judge John J. McConnell, Jr. is cancelled (Barletta, Barbara) (Entered: 08/22/2017)
TEXT ORDER denying without prejudice to refiling at a later date 541 Motion to Certify Class; denying without prejudice to refiling at a later date 555 Motion to Dismiss for Failure to State a Claim; denying without prejudice to refiling at a later date 559 Motion for Summary Denial of Defendants' Partial Motion to Dismiss; denying without prejudice to refiling at a later date 567 Motion for Protective Order. So Ordered by Chief Judge William E. Smith on 8/25/2017. (Jackson, Ryan) (Entered: 08/25/2017)
NOTICE of Hearing: In Chambers Conference scheduled for Tuesday 10/3/2017 at 3:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 09/27/2017)
NOTICE of Hearing: In Chambers Conference with the Child Advocate set for Tuesday, 10/3/2017 at 01:00 PM in Judge McConnell's Chambers - Room 310 (Barletta, Barbara) (Entered: 09/27/2017)
Minute Entry for proceedings held before Chief Judge William E. Smith and Judge John J. McConnell: In Chambers Conference held on 10/3/2017; counsel present: S. Bartosz, J. Dineen, J. Rosenthal; N. Kelly, A. Jaffe, B. Baum, K. Aucoin (Jackson, Ryan) (Entered: 10/04/2017)
NOTICE of Hearing: In Chambers Conference scheduled for Friday 12/15/2017 at 9:30 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 12/06/2017)
Reset Hearings re: Notice of In Chambers Conference RESCHEDULED for Tuesday 12/19/2017 at 10:30 AM in Chambers before Chief Judge William E. Smith; conference previously scheduled for 12/15/17 is hereby CANCELLED. (Jackson, Ryan) (Entered: 12/07/2017)
Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference held on 12/19/2017; counsel present: S. Bartosz, J. Rosenthal, J. Dineen; N. Kelly, B. Baum, K. Aucoin. (Jackson, Ryan) (Entered: 12/19/2017)
586 Joint MOTION for Settlement for Preliminary Approval of Settlment Agreement, Setting Hearing, and Directing Class Notice filed by All Defendants. Responses due by 1/22/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kelly, Neil) (Entered: 01/08/2018)

01/11/2018 01/11/2018 01/17/2018 01/18/2018 01/18/2018 02/01/2018 03/06/2018
03/15/2018 04/03/2018 04/19/2018 04/24/2018

587 ORDER granting 586 Motion for Preliminary Approval of Settlement Agreement, Setting Hearing, and Directing Class Notice. So Ordered by Chief Judge William E. Smith on 1/11/2018. (Jackson, Ryan) (Entered: 01/11/2018)
NOTICE of Hearing: FAIRNESS HEARING scheduled for Wednesday 5/9/2018 at 10:00 AM in Courtroom 3 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 01/11/2018)
588 NOTICE by Kevin J. Aucoin, Steven M. Costantino, Janice E. DeFrances, Gina M Raimondo, Elizabeth Roberts re 587 Order on Motion for Settlement (Attachments: # 1 Exhibit)(Baum, Brenda) (Entered: 01/17/2018)
589 NOTICE by Kevin J. Aucoin, Steven M. Costantino, Janice E. DeFrances, Gina M Raimondo, Elizabeth Roberts re 588 Notice (Other) (Baum, Brenda) (Entered: 01/18/2018)
590 EXHIBIT IN SUPPORT by All Defendants in support of 589 Notice (Other) . (Baum, Brenda) (Entered: 01/18/2018)
591 Consent MOTION for Attorney Fees filed by All Plaintiffs. Responses due by 2/15/2018. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Bartosz, Sara) (Entered: 02/01/2018)
592 ORDER APPROVING FORM AND MANNER OF NOTICE OF NEGOTIATED ATTORNEYS' FEES AND EXPENSES, granting 591 Consent Motion for Attorney Fees. So Ordered by Chief Judge William E. Smith on 3/6/2018. (Jackson, Ryan) (Entered: 03/06/2018)
593 NOTICE by Gina M Raimondo of Compliance with the Order Directing Class Notice (Attachments: # 1 Exhibit Affidavit of Compliance)(Kelly, Neil) (Entered: 03/15/2018)
594 MOTION to Withdraw as Attorney Joshua Rosenthal as Counsel of Record filed by All Plaintiffs. Responses due by 4/17/2018. (Bartosz, Sara) (Entered: 04/03/2018)
TEXT ORDER granting 594 Motion to Withdraw as Attorney. Attorney Joshua M. Rosenthal terminated. So Ordered by Chief Judge William E. Smith on 4/19/2018. (Jackson, Ryan) (Entered: 04/19/2018)
595 MOTION to Seal Filed. Notice Sent To: Sean M., Matthew R., Andrew C., Gina M Raimondo. (Attachments: # 1 Proposed Sealed Document Exhibit A, # 2 Proposed Sealed Document Exhibit B, # 3 Proposed Sealed Document Exhibit C, # 4 Proposed Sealed Document Exhibit D, # 5 Proposed Sealed Document Exhibit E, # 6 Proposed Sealed Document Exhibit F, # 7 Proposed Sealed Document Exhibit G,

05/04/2018 05/07/2018 05/09/2018
05/15/2018 05/21/2018 06/06/2018

# 8 Proposed Sealed Document Exhibit H, # 9 Proposed Sealed Document Exhibit I, # 10 Proposed Sealed Document Exhibit J, # 11 Proposed Sealed Document Exhibit K, # 12 Proposed Sealed Document Exhibit L, # 13 Proposed Sealed Document Exhibit M, # 14 Proposed Sealed Document Exhibit N, # 15 Proposed Sealed Document Exhibit O, # 16 Proposed Sealed Document Exhibit P, # 17 Proposed Sealed Document Exhibit Q, # 18 Proposed Sealed Document Exhibit R, # 19 Proposed Sealed Document Exhibit S, # 20 Proposed Sealed Document Exhibit T, # 21 Proposed Sealed Document Exhibit U, # 22 Proposed Sealed Document Exhibit V, # 23 Proposed Sealed Document Exhibit W, # 24 Proposed Sealed Document Exhibit X)(Bartosz, Sara) This entry/document has been filed under seal pursuant to statute, rule or court order and access is restricted. Please login to CM/ECF to view document(s). (Entered: 04/24/2018)
596 Joint MOTION for Settlement filed by Andrew C., Sean M., Matthew R.. Responses due by 5/18/2018. (Bartosz, Sara) (Entered: 05/04/2018)
TEXT ORDER granting 595 Motion to Seal. So Ordered by Chief Judge William E. Smith on 5/7/2018. (Jackson, Ryan) (Entered: 05/07/2018)
Minute Entry for proceedings held before Chief Judge William E. Smith: Fairness Hearing held on 5/9/2018. Sara M. Bartosz, Elizabeth Gretter, and John W. Dineen for the Plaintiffs. Neil F.X. Kelly and Brenda D. Baum for the Defendants. Court addresses. Counsel make a brief presentation about the history of this litigation and the settlement process and agreement. Individuals comment in regard to the settlement. Court approves the settlelment agreement. Court comments with respect to the decision to approve the settlement. Court approves and certifies the class for all of the reasons that have been set forth in the submissions. Court approves the fee settlement in the amount requested. Plaintiff to submit Order. Recess. (Court Reporter Lisa Schwam in Courtroom 3 at 10:09.) (Jackson, Kerrie) (Entered: 05/09/2018)
598 ORDER granting 596 Motion for Final Approval of Settlement Agreement and Fees Settlement. So Ordered by Chief Judge William E. Smith on 5/14/2018. (Jackson, Ryan) (Entered: 05/15/2018)
599 MOTION to Withdraw as Attorney Jared Bobrow and Weil, Gotshal & Manges LLP as Counsel of Record filed by Andrew C., Sean M., Matthew R.. Responses due by 6/4/2018. (Bartosz, Sara) (Entered: 05/21/2018)
TEXT ORDER granting 599 Motion to Withdraw as Attorney. Attorney Jared B. Bobrow terminated. So Ordered by Chief Judge William E. Smith on 6/6/2018. (Jackson, Ryan) (Entered: 06/06/2018)

06/01/2020 06/01/2020 06/08/2020 06/08/2020 06/15/2020 06/15/2020 06/17/2020 06/18/2020 06/29/2020 06/30/2020 07/02/2020

600 MOTION to Seal Filed. Notice Sent To: All Defendants. (Attachments: # 1 Exhibit)(Kelly, Neil) This entry/document has been filed under seal pursuant to statute, rule or court order and access is restricted. Please login to CM/ECF to view document(s). (Entered: 06/01/2020)
601 NOTICE by Kevin J. Aucoin, Steven M. Costantino, Janice E. DeFrances, Gina M Raimondo, Elizabeth Roberts (Notice of Exit) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Kelly, Neil) (Entered: 06/01/2020)
602 RESPONSE In Opposition to 600 MOTION to Seal Filed. filed by Andrew C., Sean M., Matthew R.. Replies due by 6/15/2020. (Bartosz, Sara) (Entered: 06/08/2020)
603 MOTION to Strike 601 Notice (Other) of Exit filed by Andrew C., Sean M., Matthew R.. Responses due by 6/22/2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bartosz, Sara) (Entered: 06/08/2020)
604 MOTION for an Extension of Time filed by Kevin J. Aucoin, Steven M. Costantino, Janice E. DeFrances, Gina M Raimondo, Elizabeth Roberts. Responses due by 6/29/2020. (Baum, Brenda) (Entered: 06/15/2020)
605 MOTION for an Extension of Time to File STATE DEFENDANTS' RESPONSE IN SUPPORT OF THEIR MOTION TO FILE UNDER SEAL filed by All Defendants. Responses due by 6/29/2020. (Baum, Brenda) (Entered: 06/15/2020)
606 RESPONSE In Opposition to 604 MOTION for an Extension of Time filed by Andrew C., Sean M., Matthew R.. Replies due by 6/24/2020. (Bartosz, Sara) (Entered: 06/17/2020)
TEXT ORDER granting 604 Motion for Extension of Time ; granting 605 Motion for Extension of Time to File; extending deadline an additional 14 days from this order. So Ordered by District Judge William E. Smith on 6/18/2020. (Jackson, Ryan) (Entered: 06/18/2020)
607 MOTION to Withdraw 600 MOTION to Seal Filed. filed by Kevin J. Aucoin, Steven M. Costantino, Janice E. DeFrances, Gina M Raimondo, Elizabeth Roberts. Responses due by 7/13/2020. (Baum, Brenda) (Entered: 06/29/2020)
TEXT ORDER granting 607 Motion to Withdraw and terminating 600 Motion to Seal. So Ordered by District Judge William E. Smith on 6/30/2020. (Jackson, Ryan) (Entered: 06/30/2020)
608 RESPONSE In Opposition to 603 MOTION to Strike 601 Notice (Other) of Exit filed by All Defendants. Replies due by 7/9/2020. (Attachments: # 1 Supporting Memorandum memorandum, # 2 Exhibit D, # 3 Exhibit E)(Baum, Brenda) (Entered: 07/02/2020)

07/09/2020 07/27/2020

609 REPLY to Response re 608 Response to Motion, to Strike Defendants' Notice of Exit filed by Andrew C., Sean M., Matthew R.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bartosz, Sara) (Entered: 07/09/2020)
NOTICE of Hearing: 'In' Chambers Zoom Video-Conference scheduled for Thursday 8/13/2020 at 2:00 PM as a Remote Hearing before District Judge William E. Smith; Zoom invitation and instructions will be emailed to counsel of record. (Jackson, Ryan) (Entered: 07/27/2020)