Wyatt B. v. Kotek

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

WYATT B. and NOAH F. by Civ. No. 6:19-cv-00556-AA

their next friend Michelle

McAllister; KYLIE R. and ALEC

R. by their next friend Kathleen

Megill Strek; UNIQUE L. by her

next friend Annette Smith;

SIMON S. by his next friend Paul

Aubry; RUTH T. by her next friend

Michelle Bartov; BERNARD C. by

his next friend Ksen Murry; NAOMI B.

by her next friend Kathleen Megill

Strek; and NORMAN N. by his next

friend Tracy Gregg, individually and

on behalf of all other similarly

situated,

Plaintiffs, OPINION & ORDER

v.

KATE BROWN; FAIRBORZ

PAKSERESHT; MARILYN

JONES; OREGON DEPARTMENT

OF HUMAN SERVICES,

Defendants.

_______________________________________

AIKEN, District Judge.

This class action comes before the Court on Defendants’ Motions to Dismiss or

to Make More Definite and Certain. ECF No. 31. For the reasons set forth below,

the Motion is GRANTED in part and DENIED in part.

LEGAL STANDARD

To survive a motion to dismiss under the federal pleading standards, the

complaint must include a short and plain statement of the claim and “contain

sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged. The plausibility standard . .

. asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

The court is not required to accept legal conclusions, unsupported by alleged facts, as

true. Id.

BACKGROUND

A. The Parties

The Oregon Department of Human Services (“DHS”) is an agency of the State

of Oregon which has responsibility for the Child Welfare Agency (“Child Welfare”), a

subdivision of DHS. Compl. ¶ 26. Child Welfare acts as DHS’s agent in protecting

the safety and welfare of children. Id. at ¶ 28.

Kate Brown is the Governor of Oregon. Compl. ¶ 25. Fariborz Pakseresht is

the Director of DHS and is responsible for DHS policies, practices, and operations,

and for ensuring that DHS complies with all applicable federal and state laws. Id.

at ¶ 26. Marilyn Jones was the Director of Child Welfare and responsible for Child

Welfare’s policies, practices, and operations and for ensuring that Child Welfare

complies with all applicable federal and state laws. Id. at ¶ 27.1

The named Plaintiffs are youths in the custody of DHS and are housed,

variously, in foster homes or in facilities contracted for by DHS. Compl. ¶¶ 17-24.

Plaintiffs bring claims on behalf of themselves and on behalf of a class consisting of

all children for whom DHS has or will have legal responsibility and who are or will

be in the legal and physical custody of DHS (the “general class”). Compl. ¶ 33(a).

In addition, Plaintiff’s bring claims on behalf of three subclasses:

(1) Children who have or will have physical, intellectual, cognitive, or mental

health disabilities (the “ADA subclass”);

(2) Children who are or will be 14 years old and older, who are eligible for

transition services and lack an appropriate reunification or other permanency

plan (the “aging-out subclass”); and

(3) Children who identify as sexual or gender minorities, including lesbian, gay,

bisexual, queer, transgender, intersex, gender non-conforming, and non-

binary children (the “SGM subclass”)2.

B. Plaintiff’s Allegations

The Complaint alleges that Oregon’s child welfare and foster care systems

are dysfunctional and plagued by systemic deficiencies. These deficiencies have

1 The Court notes that Rebecca Jones Gaston is the current Child Welfare Director. See

https://www.oregon.gov/DHS/ABOUTDHS/Pages/dhs-leadership.aspx (last accessed September 22,

2021).

2 Plaintiffs have indicated that they prefer to use the term “Sexual and Gender Minorities” or “SGM”

to refer to individuals within this sub-class, rather than LGBTQ. Compl. ¶ 15(f), n.1. The Court will

apply Plaintiff’s preferred terminology in this Opinion.

been documented by the state and federal governments in a series of reviews and

audits. Compl. ¶¶ 209-224. The problems identified in the audits have not been

adequately addressed.

Plaintiffs allege that DHS fails to employ a minimally adequate number of

caseworkers and that caseworkers are not provided with adequate training or

support. Compl. ¶¶ 15(a), 231. Caseworkers are assigned more cases than they can

manage, with little training or oversight. Id. at ¶ 230-31. As a result, DHS has

difficulty retaining caseworkers and turnover is high. Id. at ¶ 232. Approximately

70% of Child Welfare employees have been on the job for less than 18 months. Id.

at ¶ 233.

Plaintiffs allege that DHS has failed to provide adequate support, training, or

financial compensation to foster parents. Compl. ¶¶ 15(g). DHS has also failed to

recruit additional foster parents in general and particularly foster parents willing

and able to care for children with disabilities. Id. at ¶¶ 15(g), 221.

Plaintiffs allege that DHS does not properly evaluate the needs of each child,

which prevents caseworkers from planning appropriate placements. Compl. ¶¶

15(b), 236. Children do not receive services required by their case plans, either

because DHS fails to provide the services directly, or fails to contract for those

services. Compl. ¶ 236.

When children are taken into custody, they are often left in temporary

placements or are repeatedly moved between foster homes and institutions. Compl.

¶ 15(c). Children are placed in hospitals, homeless shelters, refurbished

delinquency institutions, overcrowded temporary general foster care homes, or in

poorly screened child-specific kith or kin foster homes. Compl. ¶¶ 15(d), 247.

Children in DHS care experience abuse and neglect at rates much higher than

national standards. Compl. ¶¶ 251-254.

Children with disabilities are not provided with appropriate services and

treatment to ensure equal access to stable, family-like foster placement in the least

restrictive environment. Compl. ¶ 15(e). SGM children are often deprived of safe

and stable placement. Compl. ¶¶ 15(f), 222. Children often remain in DHS custody

for years and older children are not provided with support, skills, or resources

necessary to survive on their own when they leave foster care. Compl. ¶ 15(h), (i).

When those children age out of the child welfare system, they frequently end up

homeless. Compl. ¶ 250.

DISCUSSION

Plaintiffs bring claims under 42 U.S.C. § 1983 for violation of their substantive

due process rights under the Fourteenth Amendment and for violation of their rights

under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq.,

as well as claims under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.,

and the Rehabilitation Act, 29 U.S.C. § 794.

Defendants move to dismiss under the doctrine of O’Shea abstention.

Defendants also move to dismiss each of Plaintiff’s claims for failure to state a claim.

I. O’Shea Abstention

In their prayer, Plaintiffs seek declaratory and injunctive relief, as well as the

appointment of a neutral monitor to assess and report on Defendants’ compliance

with the terms of the requested injunction. Compl. ¶¶ 330-32. Defendants move to

dismiss on the grounds that this Court should abstain from adjudicating this case

under O’Shea v. Littleton, 414 U.S. 488 (1974).3 “Abstention from the exercise of

federal jurisdiction is the exception, not the rule,” and federal courts have a “virtually

unflagging” obligation to exercise the jurisdiction given to them by Congress and the

Constitution. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,

817 (1976). “Only in unusual circumstances do principles of comity in relation to

state courts warrant federal court abstention.” Tinsley v. McKay, 156 F. Supp.3d

1024, 1030 (D. Ariz. 2015) (citing Younger v. Harris, 401 U.S. 37, 91 (1971)).

In O’Shea v. Littleton, nineteen plaintiffs challenged comprehensive racial

discrimination in the administration of justice in Alexander County, Illinois, alleging

that the county magistrate and judge imposed higher bail and harsher sentences on

black defendants than on white defendants. 414 U.S. at 491-92. The Supreme Court

held that principles of equity, comity, and federalism precluded equitable

intervention because the plaintiffs sought “an injunction aimed at controlling or

preventing the occurrence of specific events that might take place in the course of

3 There is some lingering uncertainty over whether motions seeking abstention should be considered

as facial challenges to subject matter jurisdiction under Rule 12(b)(1) or as motions to dismiss for

failure to state a claim under Rule 12(b)(6). Courthouse News Serv. v. Planet, 750 F.3d 776, 779-80

(9th Cir. 2014). When, as here, the motion is presented as one for failure to state a claim, the Ninth

Circuit has endorsed resolving the motion under the Rule 12(b)(6) standard. Id. The Court shall

therefore resolve the motion on the terms proposed by Defendants in their Motion to Dismiss.

future state criminal trials.” Id. at 499-500. The Supreme Court noted that its earlier

decision in Younger v. Harris, 401 U.S. 37 (1971) had established a firm rule against

enjoining ongoing criminal proceedings absent exceptional circumstances and found

that the O’Shea plaintiffs sought to “indirectly accomplish the [same] kind of

interference” through an “ongoing federal audit” of state proceedings. O’Shea, 414

U.S. at 500.

The Ninth Circuit has held that O’Shea stands for “the more general

proposition that [courts] should be very reluctant to grant relief that would entail

heavy federal interference in such sensitive state activities as administration of the

judicial system.” Courthouse News Serv. v. Planet, 750 F.3d 776, 789-90 (9th Cir.

2014) (internal quotation marks and citation omitted, alterations normalized).

“O’Shea compels abstention where the plaintiff seeks an ‘ongoing federal audit’ of the

state judiciary, whether in criminal proceedings or in other respects.” Id. at 790

(quoting E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2011) (per curiam)).

Put simply, “O’Shea abstention is inappropriate where the requested relief may be

achieved without an ongoing intrusion into the state’s administration of justice, but

is appropriate where the relief sought would require the federal court to monitor the

substance of individual cases on an ongoing basis to administer its judgment.” Id.

In the present case, Defendants assert that granting the requested relief would

require this Court to institute continuing federal oversight of Oregon state court

dependency adjudications, directly contrary to the principles of O’Shea. Plaintiffs

maintain that this case is not aimed at the Oregon state courts, but at the policies

and practices of DHS as a state agency.

A. Juvenile Dependency in Oregon State Courts

To understand whether the relief sought by Plaintiffs would impermissibly

burden the administration of justice by the Oregon state courts, something must first

be said about how those courts operate in the realm of juvenile dependency.

The juvenile courts are generally departments of the Oregon circuit courts and

they are administered by circuit court judges, although in some smaller counties,

juvenile court jurisdiction is vested with the county court. ORS 3.260(1); ORS 5.020;

ORS 419B.100(1).

A child taken into DHS custody may not be held in shelter care for more than

twenty-four hours without an order from the juvenile court after a hearing. ORS

419B.183. At that hearing, the circuit court must make certain findings, including

that removal from the home is in the best interests of the child. ORS

419B.185(1)(e)(A).

Within 60 days after DHS files a petition alleging that a child is within the

jurisdiction of the juvenile courts, the court must hold a hearing on the petition. ORS

419B.305(1). When the court determines that it would be in the best interest of the

child and for the welfare of the child, the court may place the child in the legal custody

of DHS “for care, placement and supervision.” ORS 419B.337(1).

The court may specify the particular type of care, supervision or services

to be provided by the Department of Human Services to wards placed in

the department’s custody and to the parties or guardians of the wards,

but the actual planning and provision of such care, supervision or

services is the responsibility of the department. The department may

place the ward in a child care center authorized to accept the ward.

ORS 419B.337(2) (emphasis added).

Furthermore, if the child “has been placed in the custody of the Department of

Human Services, the court shall make no commitment directly to any residential

facility, but shall cause the ward to be delivered into the custody of the department

at the time and placed fixed by rules of the department.” ORS 419B.337(5).

“To ensure effective planning for wards, the Department of Human Services

shall take into consideration recommendations and information provided by the

committing court before placement in any facility.” ORS 419B.343(1). Commitment

of a child to DHS “does not terminate the court’s continuing jurisdiction to protect the

rights of the child or ward or the child or ward’s parents or guardians.” ORS

419B.349(1). Rather:

Notwithstanding ORS 419B.337(5), if upon review of a placement or

proposed placement of a child or ward made or to be made by the

department the court determines that the placement or proposed

placement is not in the best interest of the child or ward, the court may

direct the department to place or maintain the child or ward in the care

of the child or ward’s parents, in foster care with a foster care provider

who is a relative, in foster care with a foster care provider who is or has

been a current caretaker for the child, in foster care with a foster care

provider who is not a relative or current caretaker, in residential care,

in group care or in some other specific type of residential placement, but

unless otherwise authorized by law, the court may not direct a specific

placement. The actual planning and placement of the child or ward is

the responsibility of the department.

ORS 419.349(1) (emphasis added).

DHS is obliged to provide the juvenile court with regular reports, at least every

six months, containing specific categories of information. ORS 419B.440; ORS

419B.443(1). Depending on the contents of the report and the state of the case, the

juvenile court may, and in many circumstances must, hold a hearing on the report.

ORS 419B.449(1). After the hearing, the juvenile court must make specific findings

concerning, inter alia, why continued care is necessary; the expected timetable for

return or other permanent placement; the number of placements made; schools

attended; face-to-face contacts with the assigned caseworker; visits with parents or

siblings; and whether the frequency of each is in the child’s best interests. ORS

419B.449(2), (3).

As summarized above, therefore, the state juvenile courts have a central, but

not all-powerful, role in the juvenile dependency process. DHS retains important

control and discretion concerning the planning and provision of care and services to

the children in its custody.

B. Abstention is inappropriate in this case.

Defendants urge the Court to follow the example of E.T. v. Cantil-Sakauye, 682

F.3d 1121 (9th Cir. 2012), in which the Ninth Circuit affirmed dismissal on the basis

of O’Shea abstention. In E.T., the plaintiffs were a proposed class of foster children

in Sacramento County, seeking to challenge the caseloads of the Sacramento County

Dependency Court and the court-appointed attorneys, which the plaintiffs alleged

were “so excessive as to violate federal and state constitutional and statutory

provisions.” Id. at 1122. The district court dismissed the case, citing O’Shea, and the

Ninth Circuit affirmed, observing that “[b]ecause the question is one of adequacy of

representation, potential remediation might involve examination of the

administration of a substantial number of individual cases.” Id. at 1124. The Ninth

Circuit concluded that “the declaratory relief sought by Plaintiffs would amount to

an ongoing federal audit of Sacramento County Dependency Court proceedings,

requiring abstention under O’Shea.” Id.

Unlike E.T., Plaintiffs in this case do not challenge the functions or the

caseloads of the Oregon state courts, or of court-appointed counsel. Rather, Plaintiffs

allege and challenge systemic deficiencies in DHS, including the caseloads of DHS

caseworkers and the provision of services to foster children in DHS custody. Nor does

the relief sought by Plaintiffs necessarily entail examination of the administration of

individual cases, as in E.T. Rather, Plaintiffs seek relief on the systemic level. See

E.T., 682 F.3d at 1124 (distinguishing a challenge to average court delays in Los

Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir. 1992) from the fact-intensive

and case-specific examination required to gauge adequacy of representation). As the

Ninth Circuit observed in Courthouse News, O’Shea abstention is warranted when

the requested relief requires the federal court to monitor the substance of individual

cases on an ongoing basis but is “inappropriate where the requested relief may be

achieved without an ongoing intrusion into the state’s administration of justice.”

Courthouse News Serv., 750 F.3d at 790.

The present case more closely resembles Tinsley v. McKay, 156 F. Supp.3d

1024 (D. Ariz. 2015). In Tinsley the plaintiffs challenged the actions of the state

executive agencies tasked with child welfare, alleging that “structural and

operational failures” violated their federal statutory and constitutional rights. Id. at

1026-27. These failures included a shortage of and inaccessibility to health services;

widespread failure to conduct timely investigations of reports of mistreatment in the

foster care system; a shortage of family foster homes; and a “widespread failure to

engage in basic child welfare practices aimed at maintaining family relationships.”

Id. at 1026. As here, the defendants urged the district court to abstain under O’Shea,

arguing that “the injunctive relief Plaintiffs seek necessarily requires this Court to

create and then monitor, for purposes of enforcement, measurable criteria for

placements, visitation, permanency, health care, and other facets of foster care that

juvenile court judges adjudicate, and would this constitute an ongoing federal court

audit of juvenile court proceedings.” Id. at 1042 (internal quotation marks omitted).

In order to weigh the merits of the defendants’ argument, the Tinsley court

considered the powers of the Arizona juvenile courts and their role in the state child

welfare process in some detail. Tinsley, 156 F. Supp.3d at 1027-28. This review

reveals a juvenile court system broadly similar in form and function to the Oregon

juvenile courts, as described in the previous section. In both states, the juvenile court

holds a preliminary hearing shortly after a child is taken into the custody of the

agency. Id. at 1027. This is followed by a dependency hearing, in which the court

determines if the child “is in need of assistance or placement either because the child

has no guardian responsible for care or the guardian is unable to provide the

necessary care.” Id. As in Oregon, the Arizona juvenile court conducts periodic

review hearings to “reassess the well-being of the child, monitor progress toward the

child’s goals, and determine if the child continues to be dependent.” Id. The state

agency retains substantial control over the specifics of placement for children placed

in their custody by the juvenile court and retains control over the licensing, training,

and investigation of foster care homes. Id. at 1028.

Ultimately, the district court rejected the defendants’ argument and held that,

unlike the plaintiffs in E.T., the Tinsley plaintiffs’ claims and proposed relief were

not “directly aimed at the functioning of the juvenile courts.” Tinsley, 156 F. Supp.3d

at 1043. The Tinsley plaintiffs had not alleged any statutory or constitutional

deficiency in the procedure or administration of the Arizona juvenile courts, nor did

the plaintiffs allege that the structural and systemic defects of the Arizona child

welfare agencies were the fault of the juvenile courts. Id. at 1043-44. Rather, “the

absence of proper agency organization and resources results in constitutional

violation, signified by insufficient delivery of services to foster children, including

instances of direct violation of juvenile court orders.” Id. at 1044.

The primary question under O’Shea is whether the proposed injunctive

relief would result in an ongoing federal audit of state court proceedings.

The complaint here does not. It is directed towards state agencies.

Defendants express concern that the obligation of juvenile courts to

oversee those agencies will result in a federal injunction which will

indirectly accomplish the interference Younger aims to avoid. But . . .

although the juvenile courts play a significant role in overseeing the care

of children within the custody and care of the Arizona child welfare

agencies, the courts are not involved in adjudicating and remedying the

types of claims raised here.

Tinsley, 156 F. Supp.3d at 1044.

In this case, as in Tinsley, Plaintiffs claims are aimed at state agencies,

specifically DHS, rather than at the Oregon juvenile courts. The substantial

similarity between the juvenile court systems of Arizona and Oregon makes the

Tinsley decision especially persuasive. Although the Oregon juvenile courts have an

important role in the child welfare system, significant aspects of that system, such as

the specifics of a child’s placement or the planning and provision of services, are

reserved to DHS, see, e.g., ORS 419B.337(2); ORS 419.349(1), and Plaintiff’s claims

are directed at those very aspects of the dependency process. As in Tinsley, Plaintiffs

do not allege that their injuries are the result of the procedures or the administration

of the juvenile court system, or that the systemic relief they seek is within the power

of the Oregon juvenile courts to grant. Accordingly, the Court concludes that O’Shea

abstention is not warranted.

To be sure, however, the relief Plaintiffs seek is expansive and there is always

cause for caution whenever a federal court is asked to intrude upon the functions of

a state government and so a measured approach is essential. See, Hornes v. Flores,

557 U.S. 433, 450 (2009) (directing courts to take a “flexible approach” to addressing

widespread violation of federal law by state institutions); Tinsley, 156 F. Supp.3d at

1044 (considerations of “federalism and comity warrant restraint and respect when

the target of a federal court injunction is a state agency.”). “[P]rinciples of federalism

counsel restraint in the granting of injunctive relief against state agencies,” but

“[j]ust as it is emphatically the province and duty of the judiciary to say what the law

is, so too it is emphatically the province and duty of the judiciary to vindicate the law

where it has been violated.” Melendres v. Maricopa Cnty., No. CV-07-2513-PHX-

GMS, 2009 WL 2707241, at *5 (D. Ariz. Aug. 24, 2009) (internal citations omitted).

The Court will bear these considerations in mind as this case progresses and, should

Plaintiffs prevail on their claims, it will continue to bear them in mind when it comes

to crafting the scope of equitable relief.

II. Due Process

Plaintiffs’ first claim for relief alleges violation of Plaintiffs’ substantive due

process rights under the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Title

42 U.S.C. § 1983 “provides a federal cause of action against any person who, acting

under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526

U.S. 286, 290 (1999). To maintain a claim under § 1983, “a plaintiff must both (1)

allege the deprivation of a right secured by the federal Constitution or statutory law,

and (2) allege that the deprivation was committed by a person acting under color of

state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

“Generally, the Fourteenth Amendment’s Due Process Clause does not confer

any affirmative right to governmental aid and typically does not impose a duty on the

state to protect individuals from third parties.” Henry A. v. Willden, 678 F.3d 991,

998 (9th Cir. 2012) (internal quotation marks and citation omitted, alterations

normalized). This general rule is subject to two important exception. “First, there is

the ‘special relationship’ exception—when a custodial relationship exists between the

plaintiff and the State such that the State assumes some responsibility for the

plaintiff’s safety and well-being.” Id. And second, there is the “state-created danger

exception,” when “the state affirmatively places the plaintiff in danger by acting with

deliberate indifference to a known and obvious danger.” Id. If either exception

applies, a state’s omission or failure to protect may give rise to liability under § 1983.

Id.

“Once the state assumes wardship of a child, the state owes the child, as part

of that person’s protected liberty interest, reasonable safety and minimally adequate

care and treatment appropriate to the age and circumstances of the child.” Lipscomb

v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992) (en banc). In a survey of circuit court

decisions, the Ninth Circuit observed that this responsibility extends to the right to

be free from “the infliction of unnecessary harm,” and to “adequate medical care,

protection, and supervision.” Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833,

846-47 (9th Cir. 2010) (internal quotation marks and citations omitted).

Plaintiffs allege that Defendants have violated their substantive due process

rights in a variety of ways, divided according to class and sub-class. For the general

class, Plaintiffs contend Defendants violated their rights (1) to freedom from

maltreatment while under the protective supervision of the state; (2) to protection

from unnecessary intrusions into the child’s well-being once the state has established

a special relationship with the child; (3) to services necessary to prevent unreasonable

risk of harm; (4) to conditions and duration of foster care reasonably related to the

purpose of government custody; (5) to treatment and care consistent with the purpose

and assumptions of government custody; and (6) the right not to be maintained in

custody longer than is necessary to accomplish the purposes to be served by taking

the child into government custody. Compl. ¶ 306.

For the ADA subclass, Plaintiffs allege Defendants have violated their rights

(1) to be free of discrimination by reason of disability; (2) to services in the most

integrated setting appropriate to the person’s needs; (3) to be free from unnecessary

institutionalization and to be placed in the least restrictive setting; and (4) to access

to an array of community-based placements and services. Compl. ¶ 307(a).

For the SGM subclass, Plaintiffs allege that Defendants have violated their

rights (1) to freedom from bias-related violence, abuse, and harassment while in state

custody; (2) to freedom from systemic discrimination based on sexual orientation,

gender identity, and gender expression; (3) to privacy regarding the same; (4) to

medically necessary gender-affirming medical and psychological care; (5) to culturally

competent reproductive health care and sexual health services; and (6) to be clothed

and groomed consistent with their sexual orientations, gender expressions, and

gender identities. Compl. ¶ 307(b).

And for the aging-out subclass, Plaintiffs allege Defendants have violated their

rights to resources and services to prepare them for life after the foster care system.

Compl. ¶ 307(c).

Courts are not required to consider each challenged policy or practice in

vacuum and courts “may properly consider how individual policies or practices

interact with one another within the larger system.” M.D. by Stukenberg v. Abbott,

907 F.3d 237, 255 (5th Cir. 2018). In M.D. by Stukenberg v. Abbott, the Fifth Circuit

held that the Texas child welfare agency violated the substantive due process rights

of children in state custody by overburdening its caseworkers—with the attendant

problems of caseworker retention and inadequate training—because the overworked

caseworkers were not able to effectively safeguard the health and well-being of

children in the care and custody of the state. M.D. 907 F.3d at 264-65. The Fifth

Circuit held “that high error rates in abuse investigations and inadequate

enforcement policies place children at a substantial risk of serious harm seems

painfully obvious.” Id. at 267. Insufficient monitoring and oversight can, therefore,

give rise to constitutional injury. Id. at 267-68.

With respect to the array of placement opportunities or the propriety of a

particular type of placement, however, the Fifth Circuit rejected claims like those

raised by Plaintiffs in the present case:

Certainly, placing a child in-region, in a placement ideal for his service

level and personal needs, or with his siblings when appropriate would

be good practice. Plaintiffs have failed to demonstrate, however, that

failing to do so in most or all circumstances puts children at a risk of

harm serious enough to amount to a deprivation of their substantive due

process rights. There is no responsibility to maximize foster children’s

personal psychological development, and children have no right to a

stable environment or a right not to be moved from home to home,

despite the significant literature which indicates a traumatic effect of

such moves on young children. Even accepting the district court’s—

undoubtedly correct—finding that out-of-region placements and

suboptimal placements can have negative effects on a child’s

psychological health, those negative effects are not constitutionally

cognizable harms. Unlike severely overburdened caseworkers or

inadequate investigations and placement licensing, inadequate

placement array does not unacceptably increase the risk that a child will

be exposed to serious physical or psychological harm.

M.D., 907 F.3d at 268 (internal quotation marks and citations omitted, alterations

normalized); see also Marisol A. v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996)

(finding that the Fourteenth Amendment “does not require the state to provide

children in foster care with an optimum level of care or treatment,” and dismissing

the plaintiffs’ claims “to the extent that custodial plaintiffs allege a substantive due

process right to a least restrictive, optimal placement.”); Clark K. v. Guinn, No. 2:06-

CV-1068-RCJ-RJJ, 2007 WL 1435428, at *15 (D. Nev. May 14, 2007) (holding that

there is no substantive due process right to be placed in “the least restrictive

placement based on the foster child’s needs.”).

In addition, the Fifth Circuit found that “the availability of foster homes,

particularly those that provide the most ‘home-like,’ ‘least-restrictive’ environments,

is something uniquely out of the State’s control.” M.D., 907 F.3d at 268. Although

the state can provide more funding and might improve recruitment efforts, it cannot

force people to volunteer as foster parents. Id. The failure to provide a sufficient

array of foster homes, or to provide homes in the least restrictive environment was

not, therefore, a violation of the plaintiffs’ substantive due process rights. Id.

However, the “goal of the child welfare system is to further the best interest of the

children by helping to create nurturing family environments without infringing on

parental rights,” and children in state custody thus are entitled to conditions of foster

care that are reasonably related to this goal. Marisol A., 929 F. Supp. At 676.

The weight of authority clearly demonstrates that the rights secured by the

Fourteenth Amendment, though significant, are strictly limited in scope. The state

must provide food, shelter, clothing, medical care, supervision and must, to the best

of its ability under the circumstances, shield the children in their custody from

physical and psychological harm. In this case, most of the rights asserted by

Plaintiffs fall within the scope of that guarantee. See, e.g., Compl. ¶¶ 306(a) (“the

right to freedom from maltreatment while under the protective supervision of the

state,”); 307(b)(i) (“The right to freedom from bias-related violence, abuse and

harassment while in state custody,”).

The right to substantive due process does not, however, extend to placement

in an optimal or least-restrictive setting, or to the availability of an array of

placement options. As the Fifth Circuit observed in M.D., such placements would

undoubtably be better for all concerned, but they are not guaranteed under the

Fourteenth Amendment. In the present case, Plaintiffs’ first claim must be dismissed

to the extent that it seeks to vindicate a substantive due process right to be housed

in the least restrictive setting, or a right to an array of community-based placements.

See, e.g., Compl. ¶¶ 307(a)(iii), (iv). Relatedly, courts have held that the Fourteenth

Amendment right to substantive due process does not extend to a right not to be

retained in DHS custody for longer than is necessary. Clark K., 2007 WL 1435428,

at *15; see also Charlie H. v. Whitman, 83 F. Supp.2d 476, (D.N.J. 2000) (“Thus

Plaintiffs do not have a substantive due process right to not remain in state custody

unnecessarily,” (internal quotation marks omitted)). Plaintiffs’ substantive due

process claim must therefore be dismissed insofar as it asserts a claim based on a

right to a “duration of foster care reasonably related to the purpose of government

custody,” Compl. ¶ 306(d), or “the right not to be maintained in custody longer than

is necessary to accomplish the purpose to be served by taking a child into government

custody.” Id. at ¶ 306(f).

Similarly, the rights asserted by the aging-out sub-class, including the “right

to a connection with an adult resource who will maintain a stable, long-term

relationship with the child after he or she ages out of the system,” Compl. ¶ 307(c)(iii);

the “right to independent living services to prepare to exist foster care successfully,”

Id. at ¶ 307(c)(i); and “the right to assistance to find lawful, suitable permanent

housing that will not result in homelessness upon exit from foster care,” Id. at ¶

307(c)(ii), would obviously be to the benefit of the child and to society at large. The

Court is cognizant of the risks to children who age out of DHS care without proper

support or preparation for independent life and too often end up in the criminal

justice system. The provision of services for aging-out children, like those described

in the Complaint, would be a worthy goal for legislative action. But, unfortunately,

they fall beyond the constitutional guarantees of the Fourteenth Amendment and

must be dismissed.

The Court concludes that Plaintiffs have otherwise made out a claim for

violation of their substantive due process rights and Defendants’ motion is otherwise

denied.

III. The Child Welfare Act

Plaintiffs’ second cause of action is also brought under 42 U.S.C. § 1983 for

violation of Plaintiffs’ rights under the Adoption Assistance and Child Welfare Act of

1980 (the “CWA”), 42 U.S.C. § 670 et seq. Although 42 U.S.C. § 1983 is more

commonly used to vindicate federal Constitutional rights against violation by state

actors, it can also be used to enforce federal statutory rights. Henry A., 678 F.3d at

1005.

In this case, Plaintiffs allege Defendants’ actions, and inaction, constitutes a

policy, pattern, practice, and/or custom of depriving Plaintiffs of their right to (1) a

written case plan that includes a plan to provide safe, appropriate, and stable

placements; (2) a written case plan that ensures that the child receives safe and

proper care while in foster care and implementation of that plan; (3) a written case

plan that ensures provision of services to parents, children, and foster parents to

facilitate reunification or, where reunification is not possible, the permanent

placement of the child and implementation of that plan; and (4) a case review system

in which each child has a case plan designed to achieve safe and appropriate foster

care placements in the least restrictive and most family-like setting, closest to their

home community. Compl. ¶ 309.

The CWA contains “case plan provisions,” codified at 42 U.S.C. §§ 671(a)(16)

and 675(1). Section 671(a)(16) provides:

In order for a State to be eligible for payments under this part, 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 and

in accordance with the requirements of section 675a 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 of

described in sections 675(5) and 675a of this title with respect to each

child.

42 U.S.C. § 671(a)(16).

Section 675(1) in turn “provides a detailed description of what a case plan must

include, such as the child’s health and educational records, a description of the child’s

permanency plan, and a plan for ensuring the child’s educational stability.” Henry

A., 678 F.3d at 1006; 42 U.S.C. § 675(1).

In addition to the creation of a case plan, § 671(a)(16) also requires that a “case

review system” be created. The nature of such a case review system is spelled out at

some length in § 675(5) and, in relevant part, includes:

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 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 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 the 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,

41 U.S.C. § 675(5)(A).

The Ninth Circuit has held that “the case plan provisions of the CWA, codified

at §§ 671(a)(16) and 675(1) are enforceable through § 1983.” Henry A., 678 F.3d at

1008. The Ninth Circuit also held that the “case review” provision of the CWA is

enforceable through an action under § 1983. Id. at 1008-09.

The Ninth Circuit’s decision in Henry A. concerned the requirements of §

675(5)(D), which requires that a child’s health and education records be reviewed,

updated, and provided to foster parents and foster care providers. Id. Although

Plaintiffs’ claims in the present case concern § 675(5)(A), the Ninth Circuit’s

underlying reasoning applies with equal force to that provision. Both provisions are

couched in mandatory terms and “contain detailed, concrete requirements that are

capable of judicial enforcement.” Id. at 1009. Accordingly, the Court concludes that

the “case review system” requirement established by §§ 671(a)(16) and 675(5)(A) are

subject to enforcement under § 1983.

Defendants move to dismiss on the basis that Plaintiffs have not alleged that

the State has failed to provide a written case plan for any of the named Plaintiffs or

that it has failed to provide for review of those case plans. More to the point,

Defendants contend that there is no private right of action to enforce the contents of

the case review plan or to enforce the successful implementation of a plan.

As to the first issue, the individual Plaintiffs have alleged that they have had

multiple failed placements, which supports a reasonable inference that there has

been a breakdown in the case plan system. As to the question of implementation, the

Ninth Circuit has held that the case plan provisions of the CWA are couched in

mandatory terms and contained detailed, concrete requirements that are capable of

judicial enforcement through an action under § 1983. Henry A., 678 F.3d at 1008-09.

Consistent with that guidance, the Court declines to accept Defendants’ suggestion

that Plaintiffs lack a right of action to challenge either the contents of the plan or

their implementation. Defendants’ motion to dismiss Plaintiffs’ claim under the CWA

is therefore denied.

IV. ADA and Rehabilitation Act Claims

Plaintiff’s third and fourth causes of actions bring related claims for violation

of the anti-discrimination provisions of the Americans with Disabilities Act (“ADA”),

41 U.S.C. § 12131 et seq., Compl. ¶¶ 310-20, and the Rehabilitation Act, 29 U.S.C. §

794, Id. at ¶¶ 321-28. Because the applicable provisions of the ADA and the

Rehabilitation Act are “co-extensive,” courts typically discuss claims brought under

both statutes together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d 1051,

1062 n.6 (9th Cir. 2005).

To remedy the persistent problem of discrimination against the disabled, the

ADA provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). To state a claim for disability

discrimination, a plaintiff must allege four elements: (1) that he or she is an

individual with a disability; (2) he or she is otherwise qualified to participate in or

receive the benefit of some public entity’s services, programs, or activities; (3) that he

or she was either excluded from participation or denied the benefits of the public

entity’s services, programs, or activities, or was otherwise discriminated against by

the public entity; and (4) such exclusion, denial of benefits, or discrimination was by

reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

The Department of Justice has promulgated regulations implementing the

ADA. 42 U.S.C. § 12134(a). One such regulation is the “integration mandate,” which

provides that “[a] public entity shall administer services, programs, and activities in

the most integrated setting appropriate to the needs of qualified individuals with

disabilities.” 28 C.F.R. § 35.130(d).

In this case, Plaintiffs in the ADA sub-class allege that they have “physical,

mental, intellectual, or cognitive disabilities that qualify them as individuals with

disabilities within the meaning of the ADA.” Compl. ¶ 312. Plaintiffs bring two

principal claims under the ADA and the Rehabilitation Act. First, they allege that

they were excluded from fully participating in the foster care system because of their

disabilities and that Defendants discriminated against Plaintiffs by denying them

reasonable accommodations. And second, that Defendants violated the integration

mandate by placing them in residential facilities and institutions rather than in

home-like setting in the community.

A. Denial of Reasonable Accommodations

Plaintiffs allege that they “have physical, mental, intellectual, or cognitive

disabilities that qualify them as individuals with disabilities” within the meaning of

the ADA and the Rehabilitation Act and that they meet the essential eligibility

requirements for the receipt of foster care services provided by DHS. Compl. ¶¶ 312,

322. Plaintiffs allege that DHS “must provide children with disabilities an equal

opportunity to access foster care services as it provides to children without disabilities

in its custody,” and that, under 28 C.F.R. § 35.130(b)(7), Defendants “have an

affirmative duty to make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis

of disability.” Id. at ¶¶ 316-17. Plaintiffs allege that the “named Plaintiffs and all

members of the class have, and are at risk of being, deprived of their statutory right

to access additional mental health services to make them as able as their non-

disabled peers to access a stable, family-like foster placement and for appropriate

placement in the most integrated setting appropriate to their needs.” Id. at ¶ 319;

see also ¶ 327 (alleging that Defendants “fail to give children with disabilities an

equal opportunity to succeed in remaining in a family home, reunifying with their

parents, finding a permanent home, receiving necessary health care, and receiving

appropriate placement in the most integrated, community-based setting appropriate

to their needs.”).

Defendants contend that the relief Plaintiffs seek is not reasonable

accommodation for their disabilities, but rather additional treatment to mitigate

their disabilities and that Plaintiffs have not pleaded a claim for disability

discrimination.

As noted, an organization that receives federal funds violates § 504 if it denies

a qualified individual with a disability a reasonable accommodation that the

individual needs to enjoy meaningful access to the benefits of public services. Mark

H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010). “The purpose of the ADA’s

reasonable accommodation requirement is to guard against the façade of ‘equal

treatment’ when particular accommodations are necessary to level the playing field.”

McGary v. City of Portland, 386 F.3d 1259, 1267 (9th Cir. 2004). “In the context of

disability, therefore, equal treatment may not beget equality, and facially neutral

policies may, in fact, be discriminatory if their effect is to keep persons with

disabilities from enjoying the benefits of services that, by law, must be available to

them.” Id. (internal quotation marks and citation omitted). “Reasonable

accommodation does not require an organization to make fundamental or substantial

alterations to its programs,” and reasonableness “depends on the individual

circumstances of each case, and requires a fact-specific, individualized analysis of the

disabled individual’s circumstances and the accommodations that might allow him to

enjoy meaningful access to the program.” Mark H. 620 F.3d at 1098 (internal

quotation marks and citation omitted, alterations normalized). However, the ADA

“prohibits discrimination because of disability, not inadequate treatment for

disability.” Simmons v. Navajo Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010), overruled

on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).

In this case, the Court cannot say at the pleading stage that the relief sought

by Plaintiffs is based on “inadequate treatment” of their disabilities, rather than

reasonable accommodations needed to “level the playing field,” and ensure that

disabled children are able to access the services available to the other children in

DHS care. The Court concludes that Plaintiffs have adequately pleaded their claim

for disability discrimination based on a failure to provide reasonable accommodations

under the ADA and the Rehabilitation Act. Defendants’ motion to dismiss that claim

is denied.

B. The Integration Mandate

As previously noted, the “integration mandate” provides that “[a] public entity

shall administer services, programs, and activities in the most integrated setting

appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. §

35.130(d). The “most integrated setting” is one that “enables individuals with

disabilities to interact with nondisabled persons to the fullest extent possible.” Id.

Part 35, App. B. (2011). The regulation also provides that “[a] public entity shall

make reasonable modifications in policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis of disability, unless

the public entity can demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or activity.” Id. at §

35.130(b)(7).

The Supreme Court has “applied the integration and anti-isolation principles,

interpreting discrimination forbidden under the ADA to include ‘[u]njustified

isolation of the disabled.’” Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003)

(quoting Olmstead v. L.C., 527 U.S. 581, 597 (1999)). In Olmstead, the Supreme

Court “interpreted the failure to provide Medicaid services in a community-based

setting as a form of discrimination on the basis of disability.” Id. at 516-17. Of note,

the integration mandate does not concern whether services are provided, but where

and how they are provided—as the Ninth Circuit summarized “where the issue is the

location of services, not whether services will be provided, Olmstead controls.” Id. at

517.

Defendants contend that Plaintiffs have failed to state a claim for violation of

the integration mandate because they have failed to show that Plaintiffs are

segregated from non-disabled children in DHS care and, relatedly, that placement in

institutions is common to all children in DHS care, rather than specific to children

with disabilities.

Plaintiffs allege that Defendants have violated the integration mandate by

“unnecessarily placing youths with disabilities in institutional settings and denying

them access to community-based treatment.” Compl. ¶ 39(d). In the case of the

named Plaintiffs Unique L., Simon S., and Ruth T. are members of the putative ADA

sub-class and allege that they have been unnecessarily placed in institutional

facilities and deprived of placement in the least-restrictive settings. Compl. ¶¶ 74-

93, 102-08, 115-127. These allegations, and the reasonable inferences that may be

drawn from them, are sufficient to make out a claim for disability discrimination

under the integration mandate. Defendants’ motion to dismiss that claim is therefore

denied.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss, ECF No. 31, is

GRANTED in part and DENIED in part. The Court declines to abstain from

consideration of this case. With respect to Defendants’ Motion to Dismiss for failure

to state a claim, Plaintiffs’ claim for violation of their substantive due process rights

is dismissed to the extent that it seeks to reach beyond the established contours of

the constitutional guarantee, as discussed above, but the Court concludes that

Plaintiffs have otherwise stated a claim under the Due Process Clause of the

Fourteenth Amendment. Defendants’ motion is denied as to Plaintiffs’ claims under

the CWA, the ADA, and the Rehabilitation Act as discussed above.

It is so ORDERED and DATED this 2 7th day of September 2021.

/s/Ann Aiken

ANN AIKEN

United States District Judge