Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CHARLIE H. v. WHITMAN

January 27, 2000

CHARLIE H. AND NADINE H., ET AL., PLAINTIFFS,
V.
CHRISTINE TODD WHITMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Brown, District Judge.

    OPINION

Table of Contents

I. Introduction ................................................................ 480
II. Factual Background and Procedural History ................................... 480
III. Discussion .................................................................. 481
A. Motion to Dismiss Standard ............................................... 481
B. Defendants' Motion to Dismiss ............................................ 481
1. Plaintiffs' Federal Statutory Claims .................................. 481 a. Adoption Assistance Act and MPA .................................... 482 i. Adoption Assistance Act ........................................ 482 1. right to pre-placement preventive services program .......... 484 2. right to timely written case plans .......................... 485 3. right to placement in the least restrictive, most family-like setting ..................................................... 489 4. right to nationally recommended professional standards 490 5. right to adequate information system ........................ 492 ii. MPA ............................................................ 493 b. Child Abuse Prevention and Treatment Act ........................... 496 c. EPSDT .............................................................. 497 d. ADA and RHA ........................................................ 499
2. Plaintiffs' Federal Common Law Claim .................................. 502
3. Plaintiffs' Federal Constitutional Claims ............................. 504 a. Substantive Due Process ............................................ 504 i. non-custodial children ......................................... 505 ii. custodial children ............................................. 506 b. Procedural Due Process ............................................. 508 c. First and Ninth Amendments ......................................... 512
4. Abstention ............................................................ 514
 
IV. Conclusion .................................................................. 514

I. Introduction

This matter is before the Court upon the motion of Defendants, Christine Todd Whitman, as Governor of the State of New Jersey, Michele K. Guhl, as Commissioner of the Department of Human Services (hereinafter "DHS"), and Charles Venti, as Director of the Division of Youth and Family Services (hereinafter "DYFS") of the State of New Jersey (hereinafter "Defendants"), to dismiss Plaintiffs' complaint for declaratory and injunctive relief (hereinafter "Complaint" or "Compl.") for failure to state a claim upon which relief can be granted (hereinafter "Def. Motion").*fn1 For the reasons set forth herein, the Defendants' motion to dismiss is granted with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Counts of Plaintiffs' Complaint. Moreover, Defendants' motion to dismiss is granted in part and denied in part as discussed more fully herein with respect to the First and Seventh Counts of Plaintiffs' Complaint.

II. Factual Background and Procedural History

There is no term other than tragic to summarize the facts as alleged by Plaintiffs. The Complaint discusses twenty named Plaintiffs: Charlie and Nadine H., siblings aged eleven and nine who have been in DYFS custody for over five years; Jason, Jennifer, and Patti W., siblings aged ten, eight, and six who were removed from their mother's custody three years ago; Dennis M. and Denise R., siblings aged eight and seven who were removed from their mother's custody in 1995; Marco and Juan C., siblings aged eight and ten who were removed from their mother's care for the second time in 1995; Ricardo O., age thirteen-and-a-half who has been in DYFS custody since June 1997; Dolores and Anna G., siblings aged four and seventeen months who have been in DYFS custody since August 1998; Kyle J., age one-and-a-half who has been in foster care since birth; Ryan, Christopher, and Melissa H., siblings who currently live with their mother despite numerous reports of abuse and neglect; Ricky, Daniel, and Thomas M., siblings who currently live with their mother, but have spent most their lives in DYFS custody; and Barry M., age seventeen who has been in and out of DYFS custody since the age of four (hereinafter "Plaintiffs"). Compl. at ¶¶ 1, 3, 5, 7, 9, 11, 13, 15, 17, and 19. Moreover, the Complaint also seeks to maintain a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of approximately 9,250 children who are in the legal and/or physical custody of DYFS and on behalf of more than 50,000 children who currently have open DYFS cases for services. Id. at ¶¶ 34-36.

Generally speaking, Plaintiffs allege systemic failure on Defendants' part to protect both the individual Plaintiffs and the purported class and to provide them and their families with services which failure has jeopardized their health and safety by subjecting them to significant harm. Id. at ¶ 27. Plaintiffs attribute this systemic failure on Defendants' part to poor management and gross overburdening of the child welfare system in New Jersey. Id. at ¶ 28. Moreover, Plaintiffs generally allege that Defendants have failed to provide effective leadership or the resources and support necessary to ensure that the child welfare system provides adequate protection and services to New Jersey's most vulnerable children. Id. at ¶ 31. Plaintiffs also allege that this failure in leadership and resources has, in turn, led to high turnover rates for front-line caseworkers, which further jeopardizes New Jersey's children. Id. Finally, Plaintiffs allege that while Defendants are well-aware of the institutional shortcomings, as documented in a 1998 report submitted to Governor Whitman by a Blue Ribbon panel of social service administrators and service providers, lawyers and court personnel, children's advocates, and medical experts, they have failed to engage in aggressive reform efforts. Id. at ¶¶ 31 and 32. See also Compl. at ¶¶ 205-400.

More specifically, the Complaint explores the circumstances surrounding Plaintiffs' interaction with DYFS and DHS in heart-wrenching detail. For example, the Complaint alleges instances in which Plaintiffs were sexually, physically, and psychologically abused, and in at least one instance, nearly killed, while in DYFS custody. See, e.g. Compl. at ¶¶ 84, 85, 108, 127, 134, and 74. Moreover, the Complaint alleges instances in which the Plaintiffs have not received medical treatment while in DYFS custody. Id. at ¶¶ 93 and 132. Finally, the Complaint alleges instances in which the Plaintiffs' special needs have not been addressed while in DYFS custody. Id. at ¶¶ 105, 107, 122, 131, 139, and 180.

Given all of these alleged institutional deficiencies, Plaintiff seek: i) to be allowed to maintain a class action pursuant to Federal Rule of Civil Procedure 23; ii) a declaration that Defendants' actions and inactions are unconstitutional and unlawful; iii) a permanent injunction requiring Defendants' to cease practices that violate Plaintiffs' rights; iv) appropriate remedial relief to ensure Defendants' future compliance with legally mandated services to Plaintiffs; v) appointment of an expert panel with full access to Defendants, their records and their personnel, to develop and oversee the implementation of a plan for reform; vi) an award of reasonable attorneys' fees; and vii) other equitable relief. See Compl. at pp. 129-130. In response, Defendants have moved to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

III. Discussion

A. Motion to Dismiss Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all allegations in the complaint as true and viewing them in the light most favorable to a plaintiff, the plaintiff is not entitled to relief. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986). The Plaintiffs' nine causes of action may not be dismissed unless Plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Importantly, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).

B. Defendants' Motion to Dismiss

1. Plaintiffs' Federal Statutory Claims

Plaintiffs allege five causes of action pursuant to various federal statutes. Specifically, Plaintiffs allege that they are being deprived of the rights conferred upon them by the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 (hereinafter "AACWA" or "Adoption Assistance Act") and the federal Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of 1996 (hereinafter "MPA"). See Compl. at Fourth Count and Seventh Count. Plaintiffs also allege that they are being deprived of the rights conferred upon them by the federal Child Abuse Prevention and Treatment Act (hereinafter "CAPTA"). Id. at Fifth Count. Plaintiffs also allege violations of the federal Early and Periodic Screening, Diagnostic and Treatment provisions of the of the federal Medicaid Act (hereinafter "EPSDT"). Id. at Eighth Count. Finally, Plaintiffs allege that they are being deprived of rights conferred upon them by the federal Americans with Disabilities Act (hereinafter "ADA") and the Rehabilitation Act of 1973 (hereinafter "RHA"). Id. at Ninth Count.

Plaintiffs' statutory claims are brought pursuant to 42 United States Code § 1983 which imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). Section 1983 safeguards certain rights conferred by federal statutes. Id. (citation omitted). However, in order to seek redress under Section 1983, Plaintiffs "must assert the violation of a federal right, not merely a violation of federal law." Id. (citation omitted). In order to determine whether "a particular statutory provision gives rise to a federal right," courts have "traditionally looked at three factors." Id.

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.

Id. (citations omitted). With this framework in mind, each of the Plaintiffs' federal statutory claims shall be considered in turn.

a. Adoption Assistance Act and MPA

Plaintiffs' MPA claim appears to fall within a subset of the code provisions Plaintiffs cite in support of their AACWA claim. Specifically, Plaintiffs point to 42 U.S.C. § 620-627 and 670-679a in support of their Adoption Assistance Act claim and 42 U.S.C. § 622(b)(9), 671(a)(18), and 674(d) in support of their MPA claim. See Compl. at ¶ 39. Therefore, these claims and their respective code provisions shall be examined in conjunction with each other. However, generally speaking, 42 U.S.C. § 620-627 deal with the program established to supply federal funds to states for child welfare services and 42 U.S.C. § 670-679a deal with the program established to supply federal funds to states for foster care and adoption assistance. More specifically, these code sections fit into the larger scheme of funding established in Parts A through E of Subchapter IV of Chapter 7 of the Social Security Act, which generally deals with grants to states for aid and services to needy families with children and for child-welfare services. For example, 42 U.S.C. § 620-627 fall within Part B, Subpart 1 and 42 U.S.C. § 670-679a fall within Part E of Subchapter IV of Chapter 7 of the Social Security Act.

i. Adoption Assistance Act

Plaintiffs allege that, under the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, states, including New Jersey, receive federal money so long as they have submitted a plan approved by the United States Department of Health and Human Services, certify that the plan provides the child welfare services required by the Adoption Assistance Act, and comply with the terms of the plan. See Compl. at ¶ 61. Without citing any specific statutory provisions, Plaintiffs allege that they are being deprived of the following rights conferred upon them by the Adoption Assistance Act: i) right to have Defendants implement a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate; ii) right to timely written case plans that contain mandated elements and to the implementation and review of these plans; iii) right to placement in foster homes or facilities that conform to nationally recommended professional standards; iv) right to placement in the least restrictive, most family-like setting; v) right to proper care while in custody; vi) right to be freed for adoption in accordance with the time frames established by law; vii) right to planning and services to secure their permanent placement at the earliest possible time; viii) right to regular judicial and administrative reviews of their foster care placements; ix) right to dispositional hearings within twelve months of entering custody and periodically thereafter; and x) right to receive services in a child welfare system with an adequate information system to permit decision-makers to make fully informed choices in the children's best interests. Id. at ¶ 404.

With respect to each right asserted, Defendants argue that under the Blessing framework, the Adoption Assistance Act provisions at issue are not so clear and unambiguous so as to create rights enforceable under § 1983. See Def. Motion at p. 4. Plaintiffs counter that under "established standards of statutory interpretation, the statutes create specific, enforceable rights." Pl.Opp. at p. 19. In their reply, Defendants reiterate their disagreement under the Blessing framework.

Initially, Defendants argue that any analysis of the Adoption Assistance Act provisions at issue must begin with the Supreme Court's analysis and decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), which reviewed an attempt to enforce a private right pursuant to § 1983 for an alleged violation of 42 U.S.C. § 671(a)(15). See Def. Motion at p. 6. Specifically, § 671(a)(15) provides that in order for a state to be eligible for federal payments for foster care and adoption assistance under § 670, the state shall have a Plan approved by the Secretary of Health and Human Services which provides that "reasonable efforts shall be made to preserve and reunify families." 42 U.S.C. § 671(a)(15)(B). The Suter Court noted that the pertinent inquiry under the Blessing framework with respect to § 671(a)(15) was did "Congress, in enacting the Adoption Act, unambiguously confer 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. Thus, the Suter Court found that the subject class of plaintiffs could not use § 1983 to enforce § 671(a)(15) of the AACWA. See Suter, 503 U.S. at 363, 112 S.Ct. 1360 (holding that "[c]areful examination of the language relied upon by [plaintiffs], in the context of the entire Act, leads us to conclude that the `reasonable efforts' language does not unambiguously confer an enforceable right upon the Act's beneficiaries"). To the extent that Suter may have intimated that § 671(a)(15), or any other section of the Adoption Assistance Act for that matter, did not confer a private right enforceable under § 1983 simply because of its inclusion in a section requiring a State plan or specifying the required contents of such a plan, Congress amended the Social Security Act in 1994, specifically mentioning Suter. This amendment noted

[i]n 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 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., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (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. However, this amendment did not overrule Suter. The amendment only forecloses 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. See Harris v. James, 127 F.3d 993, 1002 (11th Cir. 1997) (noting that 42 U.S.C. § 1320a-2 "does not purport to reject any and all grounds relied upon in Suter; it purports only to overrule certain grounds — i.e., that a provision is unenforceable simply because of its inclusion in a section requiring a state plan or specifying the contents of such a plan"). Therefore, with this important guideline in mind, each of Plaintiffs' asserted rights is examined in the context of whether, as noted in Suter, the provision at issue unambiguously confers a private right enforceable pursuant to § 1983 under the Blessing framework.

1. right to pre-placement preventive services program

Plaintiffs allege that the Adoption Assistance Act "requires defendants, as a condition to receiving federal funds, to implement and operate in New Jersey a pre-placement preventive services program designed to help children remain with their families, when safe and appropriate." Compl. at ¶ 63a. See also Compl. at ¶ 63b (alleging that the Adoption Assistance Act "requires defendants, as a condition to receiving federal funds, to implement and operate in New Jersey a service program designed to help children, when safe and appropriate, return to the families from which they have been removed, and when this is not possible to be placed for adoption, for legal guardianship, or in some other planned, permanent living arrangement"). In this regard, Plaintiffs allege that as a result of Defendants' "actions and inactions," Plaintiffs are being deprived of their right "to have defendants implement a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate." Id. at ¶ 404. In their motion to dismiss, Defendants argue that, to the extent Plaintiffs are relying upon 42 U.S.C. § 622(b)(10)(B)(iii)(I) or 42 U.S.C. § 622(b)(10)(B)(iv) in support of this right, these subsections create no right enforceable under § 1983. See Def. Motion at p. 9. Plaintiffs respond that the Complaint "alleges that the lack of an operating preplacement preventive services program is demonstrated by the fact that there are virtually no available preventive services available, that DYFS has failed to promote and secure access to such services, and that there is no coordination of preventive services at either the state or county level." Pl.Opp. at p. 36 (citation omitted). Defendants reply that there is "no objective measure for the adequacy of pre-placement services contained in AACWA," and therefore, 42 U.S.C. § 622(b)(10)(B) does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to a pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate. Def. Reply at p. 8.

Moreover, under the Blessing test, 42 U.S.C. § 622(b)(10)(B) does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to "pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate." See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 24-25, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (holding that "[i]t is difficult to know what is meant by providing `appropriate treatment' in the `least restrictive' setting"); B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D.Ill. 1989) (examining purpose of Title IV-B [of the Social Security Act, 42 U.S.C. § 620-628b ,] as set forth in language of 42 U.S.C. § 620(a) in light of "similar language [set forth in the Developmentally Disabled Assistance and Bill of Rights Act] in Pennhurst" and holding that "Congress intended Title IV-B to be an expression of goals and guiding principles rather than an enactment that creates enforceable federal rights" and that "[n]othing in Title IV-B can be said to intend the creation of the kind of rights to which a remedy in favor of persons such as plaintiffs could attach") (emphasis added). See also Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H. 1994) (holding that "plaintiffs enjoy no enforceable rights under" 42 U.S.C. § 627(a)(2)(C), which is the predecessor to, and contains nearly the identical language as, 42 U.S.C. § 622(b)(10)(B)(iii)(I) and (II)). Therefore, for these reasons, Plaintiffs' § 1983 claim under 42 U.S.C. § 622(b)(10)(B) for a "pre-placement preventive services program designed to help children remain with their families or be returned to their families when appropriate" is dismissed.

2. right to timely written case plans

Plaintiffs also allege that "[t]he Adoption Assistance Act and relevant regulations further require that if defendants accept federal funds, they shall take steps necessary to ensure that each foster child is provided with a written case plan, containing specified elements, that is reviewed and updated at specified intervals, and that services are provided in accordance with that plan." Compl. at ¶ 64d. In this regard, Plaintiffs allege that as a result of Defendants "actions and inactions," Plaintiffs are being deprived of their right "to timely written case plans that contain mandate elements and to the implementation and review of these plans." Id. at ¶ 404. In their motion to dismiss, Defendants argue that, to the extent Plaintiffs are relying upon 42 U.S.C. § 671(a)(16) in support of this right, this subsection does not create a right enforceable under § 1983. See Def. Motion at p. 12. Specifically, Defendants argue that "Plaintiffs do not complain that New Jersey has failed to provide case plans." Id. Instead, Plaintiffs disagree "with the contents and `implementation' of these plans." Id. For example, Defendants note that Barry M. is the only Plaintiff to allege that Defendants have failed to provide him a written case plan. Id. However, on closer examination, Defendants also note that Barry M. alleges "that DYFS has failed `to provide a written case plan, reviewed annually, to prepare him for self-sufficient living.'" Id. (citing Compl. at ¶ 204) (emphasis added). Defendants argue that such disagreement is not actionable under 42 U.S.C. § 671(a)(16) pursuant to § 1983. Plaintiffs respond that not only do Plaintiffs have a right 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), but Plaintiffs also have an "enforceable right to implementation of case plan services." Pl. Opp. at pp. 22-26 and 26-29. Defendants reply that even if there is a right to a case plan and/or review system, there is no right of each individual child to enforce the particulars of his or her plan, because to do so would require a court to act without an objective measure against which to gauge a state's actions. See Def. Reply at pp. 4-5. Therefore, Defendants argue that the AACWA does not unambiguously confer upon Plaintiffs the right enforceable pursuant § 1983 to "timely written case plans that contain mandate elements and to the implementation and review of these plans." Id.

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). Specifically, "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 voluntary placement agreement entered into or 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 parents, child, and foster parents in order to improve the conditions in the parents' home, 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) To the extent available and accessible, the health and education records of the child, including —
(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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.