Opposition Brief — Kelly v. LaShawn A. ex rel. Moore

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IN THE

Supreme Court of the Hnited

OCTOBER TERM, 1993

SHARON FRATT KELLY, ef ai.,

Petitioners,

LASHAWN A., BY HER NEXT FRIEND,

EVELYN MOORE, ef al.,

Respondents.

ON PETITION FOR A WRIT OF CERT/ORARI/ TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Christopher T. Dunn

(Counsel of Record)

Marcia Robinson Lowry

Children’s Rights Project

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Elizabeth S. Symonds

American Civil Liberties Union

Foundation

122 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 544-1681

Arthur B. Spitzer

ACLU of the National Capital Area

1400 20th Street, N.W.

Washington, D.C. 20036

(202) 457-0800

QUESTIONS PRESENTED

1, Whether the court of appeals correctly concluded, in

a class action alleging that executive-branch officials of

the District of Columbia engaged in a pattern and prac-

tice of violations of federal and District of Columbia law

in the operation of the District’s foster-care system, that

a district court need not abstain from adjudicating feder-

al claims that there was no opportunity to litigate in Dis-

trict of Columbia proceedings in which only some of

petitioners were involved.

2. Whether the court of appeals correctly relied on

local law in affirming a district court’s judgment that was

based on local and federal law.

TABLE OF CONTENTS

Page

py, Be UP ayy 6 ye lil

STATUTORY PROVISIONS INVOLVED ......

COUNTERSTATEMENT OF THE CASE ...... l

SUMMARY OF ARGUMENT ............... 3

No oa ok nos be aes 60 wn wane O 4

REASONS FOR DENYING THE WRIT ....... 11

I. THE COURT OF APPEALS COR-

RECTLY CONCLUDED THAT THE

DISTRICT COURT SHOULD NOT

HAVE ABSTAINED FROM ADJUDI-

CATING RESPONDENTS’ FEDERAL

8 Ee re ee eee 1]

Il. THE COURT OF APPEALS COR-

RECTLY RELIED ON PETITION-

ERS’ VIOLATIONS OF LOCAL LAW ... 17

en ees ccc a eee e san eaneknb eae 19

rere Stas hi we ene hae as a eee es la

CHILD ABUSE PREVENTION AND

TREATMENT ACT

(0 . ) re la

ADOPTION ASSISTANCE AND

CHILD WELFARE ACT of 1980

SOUNOUNNE EEUNIOOND nc cc ccc esecuseses 2a

Page

THE DISTRICT OF COLUMBIA

PREVENTION OF CHILD ABUSE

AND NEGLECT ACT OF 1977 ........ 12a

THE DISTRICT OF COLUMBIA

YOUTH RESIDENTIAL FACILITIES

LICENSURE ACT OF 1986

(| ae eee 20a

TABLE OF AUTHORITIES

Page

Cases

Ankenbranadt v. Richards,

506 WS... Ee BAA GOO CUPPED a ke hae es 12,

Ashwander v. TVA,

eT ti EE, 66 eR RES OO eee

Brown v. Trustees of Boston University,

ew Rigt 2h eee re re.

Colorado River Water Conservation

District v. United States,

SOO Ei, Ce eee hk bn nee rks thee es eee

District of Columbia Court

of Appeals v. Feldman,

SD US. Ge Che oh ek hook oe eee

Huffman v. Pursue, Ltd.,

G20 Ui. Fee CRSP ok os we ke xk ieee

Joseph A. ex rel. Wolfe v. New Mexico

Department of Human Services,

375 F.Supp. 396 (ON. T9638) a cee es

Juidice v. Vail,

G50 US Dae GPT) oo as oka eae

Middlesex Ethic Committee v. Garden

State Bar Association,

O57 ULE Ge CUED ok eas ae ee tees eee

Moore v. Sims,

SEUSS ABO. Coe 12, 15,

Ohio Civil Rights Commission v.

Dayton Christian Schools, Inc.,

O75 LS Ole Cty ko ee es ee eee

iil

Pennhurst State School & Hospital

v. Halderman,

GD Uae Gr a oon cons cneee beeen is

Pennzoil Co. v. Texaco, Inc..,

GBt US. 5 Gees cee care oan eek ses eae 13

Timmy S. v. Stumbo,

337 F.Supp. 39 (E.DRy. 1961)... ccccccsccceces 15

Trainor v. Hernandez, —

G3i UB. SRO CHSCs, wa teneea bees kes eee 13

Turner v. District of Columbia,

532 A.2d 662 (D.C. App. 1987) .............6.. 19

United Mine Workers of America v. Gibbs,

Sed UB. Tia CE. 06 dsdean eerie 17, 18

Wilder v. Bernstein,

645 F.Supp. 1292 (S.D.N.Y. 1986),

aff'd on other grounds,

ay Bit ir fs B.S ere 15

Winston v. Children and Youth Services,

948 F.2d 1380 (3d Cir. 1991),

cert. denied, __ U.S. _,, 112 S.Ct. 2303 (1992) ..... 1S

Younger v. Harms,

Gl Ua 5F CIDER) ovine ccaceseass ae

Statutes, Rules and Regulations

42 USC. $60068E 4... 0s nae 5

42 U.S.C. S62NOMIMB) .. ccc ccc cacccoccsces 6

2 USC. SRO 6 6

42 USL. S06766GIR 65 oni oon tee 5

42 USC. G67UONID) cn 6 ccae sass ch ee 6

BRS SoM oy or ee ee 6

Se Ue, Stee 6b da ves dice tea ees sens aeas 6

GF ULE. Saeee 6 oe eee beaks ances eeseeners 6

ets Tol | | rrr re rey eer er i. ee 5

ULE, Gaerne. can anbsueseevcueeouse 5

BS Fl Ae 5

Rak Toe ve rere rr rr rea Pa

D.C. Code Ann. §§2-1351 to 2-1357............. 5

D.C. Code Ann. §§3-801 to 3-808 .............. 5

stegie F' | PPeeererrerree re se rs 6, 17

ee Ge FE, Ge a nsec ct cee kucs deeeues 6

a CGD FO, Se nck cenincteeeesweenn 6, 17

D.C. Code Ann. §§6-2101 to 6-2107 ............. 5

oles WF Perey ey ee oe a 6, 17

siege Fo Mo ) ere eer rr ee 6, 17

ilegie ” FF irs i Pwrererrrererre rr sy 17

ieee FR Sars |) eee eee 17

lege 9 We favs () 5) Er iy 17

D.C. Code Ann. §6-2123(b)(1-2) ...........-.2-. 6

ee PM Mars |g Se | rer rs eae 6

lege” P'S) fi +. 1 | Ere 6, 17

lee” F @ &: . rrr rrrrresi Tee re 17

loge FO UB er ee ae

DS. Code Anam, SEG-CIEE 00 GtEID 2 occ cctancees 5

D.C. Code Ann. §§6-2121 to 6-2127............. 5

Soeas SN I IIIS ir a. ys 6 od ow ke wn ee oe 17

ee Ge ee, EOD 2s kw ehin ease eS kw 6

es UG, OR grr ee he 6

ae GD FM. GOAEEDO cc cc cnc cec ences ewesoss 17

D.C. Code Ann. §§ 16-2301 to 16-2338 ........... 5

D.C. Code Ann. §§ 16-2351 to 16-2365 ........... 5

EE 3 co ued ood se koe ae eka he ees 16

STATUTORY PROVISIONS INVOLVED

In addition to the District of Columbia statutes cited

by petitioners, this case involves the federal Child Abuse

Prevention and Treatment Act, Pub. L. No. 93-247, 88

Stat. 4 (1974), as amended by Pub. L. No. 100-294, 102

Stat. 102 (1988)(codified as amended in relevant part at

42 U.S.C. §5106a); and the federal Adoption Assistance

and Child Welfare Act of 1980, Pub. L. No. 96-272, 94

Stat. 500 (codified as amended at 42 U.S.C. § §620-628,

670-679a).! This case also involves the Due Process

Clause of the Fifth Amendment to the United States

Constitution, which provides in relevant part, "No person

shall . . . be deprived of life, liberty, or property, without

due process of law... ."

COUNTERSTATEMENT OF THE CASE

Contrary to petitioners’ repeated assertions, this is

not a child-custody case, nor does it involve any ques-

tions concerning adjudications whether a child should be

removed from the custody of his or her parents or

whether parental rights should be terminated so that a

child may be adopted. Nor is this a case in which a fed-

eral court has been asked to second-guess discretionary

decisionmaking in individual cases.

Rather, this is a case in which a class of several

thousand children alleged -- and a district court found

after a full trial on the merits -- that executive-branch of-

ficials of the District of Columbia operate a child-

welfare system that systematically deprives respondent

children of their rights under federal statutory law, the

United States Constitution, and statutory law of the Dis-

! Respondents have set out the relevant text of these statutes in their

P .

appendix.

trict of Columbia.’ This is no more a child-custody case

than a case challenging the conditions of confinement of

the mentally incompetent is a challenge to an individual

competency proceeding or than a case challenging the

conditions of a prison facility is a challenge to an indivi-

dual finding of guilt.

In this case the district court, relying on more than

one thousand admissions by petitioners -- various

executive-branch officials of the District of Columbia --

and two weeks of uncontroverted expert testimony ad-

duced by respondents, concluded that petitioners had en-

gaged in a persistent and pervasive course of unlawful

conduct that irreparably harmed respondent children. In

a comprehensive and detailed opinion, the district court

held that petitioners had violated respondents’ rights

under federal and local law and entered judgment

against petitioners. See LaShawn A. ex rel. Moore v.

Kelly, 762 F.Supp. 959 (D.D.C. 1991).

Petitioners appealed the district court’s liability

judgment’ to the United States Court of Appeals for the

District of Columbia Circuit, arguing that the district

court should have abstained from adjudicating the feder-

al claims and that the district court erred in construing

? As the court of appeals explained, "[T]he district court found that

the District of Columbia Department of Human Services ("DHS"), the

agency entrusted with the care of foster children and abused and ne-

glected children, has consistently evaded numerous responsibilities

placed on it by local and federal statutes . . . [and] as to the children

already enmeshed in the foster-care system, that the practices of DHS

deprived them of their due process rights under the Fifth Amendment

to the United States Constitution.”. LaShawn A. ex rel. Moore v. Kelly,

990 F.2d 1319, 1321 (D.C.Cir. 1993).

> The parties separately negotiated a remedial order obligating peti-

tioners to reform the District’s foster-care system. That remedial or-

der, which the District is now implementing, is not at issue in this ap-

peal, but it contains a provision under which petitioners reserved their

right to appeal the liability judgment only.

respondents’ federal rights. A unanimous panel of the

court of appeals rejected petitioners’ abstention argu-

ment and affirmed the district court’s liability order by

relying on petitioners’ violations of District of Columbia

law. See LaShawn A. ex rel. Moore v. Kelly, 990 F.2d

1319 (D.C.Cir. 1993).

Petitioners next moved for a rehearing by the panel

or for a rehearing en banc by the court of appeals. The

court denied these motions, see Pet.App. at 95-97, and

petitioners filed this petition for a writ of certiorari with

this Court.

SUMMARY OF ARGUMENT

Petitioners assert that the court of appeals errone-

ously concluded that the district court appropriately ad-

judicated respondents’ constitutional claims; according

to petitioners, the district court should have abstained

pursuant to Younger v. Harris, 401 U.S. 37 (1971). Alter-

natively, petitioners contend that the court of appeals

erred in relying solely on petitioners’ violations of local

law in affirming the district court’s liability judgment.

Both of these contentions are meritless, and neither pre-

sents an issue that justifies the granting of a writ of

certioran.

Petitioners’ abstention argument is predicated upon

their characterization of this case as a challenge to child-

custody decisions that are the subject of ongoing District

of Columbia proceedings. As noted above, however, this

case does not involve any such challenge; instead, it

seeks to remedy a pattern and practice of executive-

branch violations of federal and District of Columbia

law, and this Court has never suggested that a district

‘ Petitioners apparently do not argue to this Court that the district

court should have abstained from adjudicating respondents’ federal

statutory claims. See infra note 11.

court should consider abstaining from adjudicating this

type of suit. Moreover, the court of appeals expressly

determined that there were no ongoing judicial proceed-

ings in the District of Columbia in which respondents

could have litigated their federal claims. This precludes

abstention, even if this were the type of case in which

abstention might be considered.

Petitioners’ attack on the court of appeals’ reliance

on local law to affirm the district court’s liability judg-

ment is equally baseless. In relying solely on local law --

and thus avoiding unnecessary rulings on federal law --

the court of appeals was simply complying with rulings of

this Court. As for petitioners’ argument that the District

of Columbia law upon which the court of appeals relied

does not afford respondents a private cause of action,

petitioners have waived this defense and are precluded

from raising it now because they failed to present it

either to the district court or to the court of appeals,

having raised it for the first time in their motion to the

court of appeals for a rehearing en banc. And, even if

they had not waived the defense, petitioners’ argument is

groundless, as the court of appeals correctly relied upon

a decision from the highest court of the District of Co-

lumbia that expressly held that children have a private

cause of action under the District of Columbia statute at

issue in this case.

Finally, beyond the meritlessness of petitioners’ argu-

ments, neither of their objections justify the granting of a

writ of certioran. The lower courts uniformly have rejec-

ted the abstention argument urged by petitioners, and

the court of appeals’ rulings are completely consistent

with the decisions of this Court.

INTRODUCTION

Foster care is a government system -- funded by lo-

cal and federal funds -- established to care for children

who cannot be cared for by their own parents. Given

the governmental role in foster care, respondent children

-- who comprise a class of all children in the foster-care

custody of the District of Columbia and all children

known to the District as the result of a report of suspec-

ted abuse or neglect’ -- have a panoply of legal rights

under the laws of the United States and of the District

of Columbia and under the United States Constitution.

Rather than challenge child-custody determinations

or other related decisions committed to the discretion of

the District of Columbia and its courts, it was these stat-

utory and constitutional rights that respondents alleged

petitioners had violated. Specifically, respondent chil-

dren alleged petitioners operated a foster-care system

that violated the Due Process Clause of the Fifth

Amendment to the United States Constitution, the feder-

al Child Abuse Prevention and Treatment Act,” the Dis-

trict of Columbia Prevention of Child Abuse and Neglect

Act of 1977,’ the District of Columbia Youth Residential

Facilities Licensure Act,® and the federal Adoption As-

sistance and Child Welfare Act of 1980.”

Under these mandates, the District of Columbia is

required, for instance, to

-- initiate investigations into reports of sus-

pected abuse and neglect promptly and to

take appropriate steps to protect children

who are the subject of such reports, 42

U.S.C. §5106a(b)(2); D.C. Code Ann. §6-

* See 762 F.Supp. at 994 n.28 (class definition).

° Codified as amended at 42 U.S.C. § §5101-5106a, 5116.

7 Codified as amended at D.C. Code Ann. § §2-1351 to 2-1357; 6-2101

to 6-2107; 6-2111 to 6-2119; 6-2121 to 6-2127; and 16-2301 to 16-2338,

16-2351 to 16-2365.

8 Codified as amended at D.C. Code Ann. § §3-801 to 3-808.

° Codified as amended at 42 U.S.C. § §620-628, 670-679a.

2102(b);

-- assure that all children who enter foster

care receive written case plans and periodic

reviews of their cases, 42 U.S.C. § §627(a)(2)

(B), 671(a)(16), 675(5); D.C. Code Ann.

§ §6-2107(b), 16-2323(a);

-- provide children with safe placements in

which they will not be harmed and provide

whatever services are necessary to assure

that children in foster care are not harmed,

U.S. Const., amend. V; D.C. Code Ann.

§§3-802, 3-803, 3-805; 42 U.S.C.

§671(a)(10);

-- provide services to families in an effort to

return children home, when appropriate, 42

U.S.C. §627(a)(2)(C); D.C. Code Ann. § §6-

2123(b)(1, 3), 6-2107(b);

-- provide services to those children who

cannot return home so that they will be able

to be adopted or placed in alternative per-

manent placements outside of government

custody; 42 U.S.C. §§627(a)(2)(C), 675(1);

D.C. Code Ann. §§6-2123(b)(1-2), 6-2107

(b); and

-- have sufficient staff, supervisory personnel,

and resources to comply with the mandates

of District of Columbia law, D.C. Code Ann.

§6-2122(c); and maintain staff qualifications,

worker caseloads, and supervision require-

ments consistent with reasonable profession-

al standards, id. §6-2122(d).

It is difficult to imagine a child-welfare system that

is further from complying with these legal mandates than

the District of Columbia’s. On the basis of over one

thousand formal admissions by petitioners, see 762 F.

Supp. at 964, and after a two-week trial at which respon-

dents adduced uncontroverted statistical evidence and

expert testimony about class-wide violations of respon-

dents’ rights and about the devastating consequences of

those violations for these helpless children, district court

judge Thomas F. Hogan held that petitioners’ violations

amounted to a "persistent, pervasive practice, attributa-

ble to a course deliberately pursued by official policy-

makers," id. at 990 (quotations and citation omitted), and

concluded that "the children in the District’s foster care

have been and continue to be irreparably harmed -- psy-

chologically, emotionally, and sometimes physically -- by

the inappropriate treatment they have received while in

that care," id. at 986.

These findings were inevitable, given the evidence

adduced at trial. For instance, named plaintiff LaShawn

A. entered foster care when she was thirty months old

after her mother placed her in District "emergency care."

Though District law directs that emergency care is to last

no longer than ninety days, LaShawn languished there

for two and one-half years, during which time the Dis-

trict never developed any case plans for her and her case

was never reviewed, in violation of federal and District

of Columbia law. She was placed in a foster home in

which she may have been sexually and physically abused,

and she began to develop psychiatric problems. At trial,

a psychiatric expert reported that, when he asked six-

year-old LaShawn who hated her, she identified her fos-

ter mother and indicated that the woman beat her.

When the doctor asked her who loved her, LaShawn re-

plied, "no one." Id. at 983.

Named plaintiff Kevin E. experienced a similarly dis-

turbing odyssey through the District’s foster-care system.

Kevin entered foster care as an infant and was still in

government custody at the time of trial -- eleven years

later. At the age of four, the District returned him to

his mother, who had previously abused him, not in an ef-

fort to reunite them but simply because the District mis-

takenly had allowed its legal custody of Kevin to lapse.

The District then failed to supervise the placement, and

Kevin was abused by his mother again; he thus reentered

foster care. Though the District had concluded soon af-

ter he had entered foster care as a baby that Kevin

should be adopted, District officials never followed man-

dated procedures to make Kevin available for adoption,

thus relegating him to long-term government custody.

At the age of eight, after one failed suicide attempt,

Kevin placed himself in a trash can and asked to be

thrown away. See id. at 985.

Tragically, these stories are typical of what is hap-

pening to thousands of children in the District’s foster-

care program. For instance,

-- For years, the Department failed to initi-

ate and complete investigations in a timely

manner, piling up backlogs of thousands of

children known to be in potentially danger-

Ous Situations. 762 F.Supp. at 968-70;

-- Nearly 75% of children in the District’s

emergency-care custody had been there

more than 90 days -- the limit imposed by

District law -- and members of the respon-

dent class had languished there for as long

as two years, with the result being "a state of

limbo for these children who .. . do not

have any case plans prepared on their be-

half." Id. at 971;

-- Of the children who were to be returned

home -- the most common planning category

-- 62% did not have and never had had a

written case plan. See id. at 973. Of the

children whom petitioners had consigned to

permanent foster care -- a planning goal that

District policy directs not be assigned to any

child younger than 12 -- 29% had been as-

signed that goal before they were one year

old, and 48% had been assigned it before

they were four. /d.;

-- Of the children in foster care, 42% had

never had a medical examination since

having entered the District’s custody, and

79% had not had a dental examination. /d.

at 974;

-- The Department routinely placed children

in overcrowded foster homes, with approxi-

mately 40% of the District’s foster homes

having more children in them than their li-

censes permitted. Stipulated Findings of

Fact 722-25, J.A. at 355."

-- Although the shortage of adoptive and

foster homes was widely recognized, the De-

partment had assigned only one and a one-

half workers to do all foster and adoptive

home recruitment. 762 F.Supp. at 975-76.

Not surprisingly, the district court found that

petitioners “consistently failed to expedite

the progression of children in its custody

toward permanent placement through adop-

tion." Id. at 975;

-- In the cases of more than one-half of the

children in the District’s foster-care custody,

there was no evidence that they had ever

been visited by their social worker. /d. at

974. In a related vein, 149 class members in

the District’s custody had no social worker

at all. /d.;

° This citation is to the joint appendix submitted by the parties to the

court of appeals.

-- Of the children for whom the District had

determined that adoption was appropriate,

only 29% had been referred to the adoption

unit in a timely manner, and for 14% of the

children it had taken over one year to com-

plete this simple but necessary administra-

tive step. Of the children who were legally

freed for adoption but not placed in an

adoptive home, only 24% had ever been re-

ferred for placement. /d. at 975. And the

district court noted that "[t]he defendants

have admitted that the[y] often fail[] to refer

children for adoption even when all hope for

family reunification is gone." Jd. at 996;

-- While the national average stay in foster

care is just Over two years, children in the

District’s foster-care system remain there for

an average of nearly five years. Jd. at 968;

and

-- At the time of trial, 107 of 239 authorized

social worker positions within the District’s

child-welfare agency were vacant. This re-

sulted in those workers on the job having to

carry dangerously high caseloads, with one

worker testifying that her caseload had de-

clined to 69 families and 251 children. The

court found that the agency "is unable to

carry out its responsibilities under federal

and District law while its social workers are

operating at existing caseloads." /d. at 978.

In an attempt to deflect attention from these find-

ings, petitioners repeat the same misleading assertion

that they unsuccessfully proffered to the court of appeals

and to the district court: that this case concerns issues

of child custody, of whether children should be left at

home or removed from their parents, and of whether pa-

rental rights should be terminated in individual cases so

that children can be legally freed for adoption. Respon-

dents recognize that these are difficult, subjective deci-

sions that should be left to the discretion of individual

caseworkers in the District of Columbia and to its courts.

In this case, however, respondents did not challenge the

exercise of that discretion, and this appeal raises no

questions concerning those issues.

Rather, this case is about the knowing and deliber-

ate failure of high-level executive-branch officials to

comply with clear legal mandates intended to protect the

innocent victims of child abuse and neglect. Or, in the

words of Judge Hogan, it is about

the failures of an ineptly managed child wel-

fare system, the indifference of the adminis-

tration of the former mayor of the District

of Columbia, Marion Barry, and the resul-

tant tragedies for District children relegated

to entire childhoods spent in foster care

drift. Unfortunately, it is about a lost gener-

ation of children whose tragic plight is being

repeated every day.

762 F.Supp. at 960.

REASONS FOR DENYING THE WRIT

I.. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT THE DISTRICT COURT

SHOULD NOT HAVE ABSTAINED FROM AD-

JUDICATING RESPONDENTS’ FEDERAL

CLAIMS

Petitioners assert that the rule first articulated in

Younger v. Harris required the district court to abstain

from adjudicating respondents’ federal constitutional

claims. See Petition at 15-24." This assertion evinces a

fundamental misunderstanding of the Younger principle.

Moreover, it cannot withstand the court of appeals’

determination that there were no ongoing state judicial

proceedings in which respondents could have litigated

their federal claims.

As an initial matter, Younger abstention should not

even be considered here because this case falls outside

the substantive scope of the Younger doctrine. As this

Court has explained, "The doctrine of abstention, under

which a District Court may decline to exercise or post-

pone the exercise of its jurisdiction, is an extraordinary

and narrow exception to the duty of a District Court to

adjudicate a controversy properly before it." Colorado

River Water Conservation District v. United States, 424

U.S. 800, 813 (1976)(internal quotations omitted). "“Ab-

Stention rarely should be invoked, because the federal

courts have a virtually unflagging obligation . . . to

exercise the jurisdiction given them." Ankenbrandt v.

Richards, 504 U.S. __, __, 112 S.Ct. 2206, 2215 (1992)

(quotations and citation omitted).

Consistent with this admonition, every case in which

this Court has found Younger abstention to be appropria-

te has been limited to a situation in which the federal

plaintiff was the subject of an ongoing or imminent state

proceeding that the plaintiff sought to enjoin or preempt

through a challenge in federal court to the constitution-

ality of some aspect of the state proceeding or state law.

See, e.g., Moore v. Sims, 442 U.S. 415 (1979)(approving

" Petitioners limit their abstention argument to respondents’ constitu-

tional claims. To the extent this is a concession that no basis exists

for the district court to have abstained from adjudicating respondents’

federal statutory claims, this further undermines petitioners’ absten-

tion argument, for it would be wholly contrary to the purposes of ab-

stention to have a federal district court split plaintiffs’ federal claims

into two cases by abstaining from adjudicating some federal claims

while proceeding to address others.

———————————

abstention in case in which federal plaintiff sought to en-

join enforcement of Title 2 of the Texas Family Code

through constitutional challenge to statute in federal

court).” This limitation logically follows from the

federalism policy consideration justifying Younger absten-

tion: the importance of allowing state courts to move

forward with their own proceedings and of respecting the

role of state couris in construing state statutes that are

the basis of ongoing or imminent judicial proceedings in

which the constitutionality of the statutes could be chal-

lenged. See id. at 429."

In this case, however, respondents did not seek to

* Accord Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)(approving ab-

stention in case in which federal plaintiff sought to enjoin state en-

forcement of Texas law concerning supersedeas bonds through consti-

tutional challenge to statute in federal court); Ohio Civil Rights Com-

mission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986)(approv-

ing abstention in case in which federal plaintiff sought to enjoin pend-

ing state proceedings through constitutional challenge to proceedings

in federal court); Middlesex Ethic Committee v. Garden State Bar Asso-

ciation, 457 U.S. 423 (1982)(approving abstention in case in which fed-

eral plaintiff sought to enjoin state enforcement of New Jersey disci-

plinary rules through constitutional challenge to rules in federal

court); Trainor v. Hernandez, 431 U.S. 434 (1977)(approving absten-

tion in case in which federal plaintiff sought to enjoin enforcement of

Illinois law governing attachment through constitutional challenge to

statute in federal court); Juidice v. Vail, 430 U.S. 327 (1977)(approving

abstention in case in which federal plaintiff sought to enjoin state en-

forcement of New York statutory contempt procedures through con-

stitutional challenge to statute in federal court); Huffman v. Pursue,

Lid., 420 U.S. 592 (1974)(approving abstention in case in which feder-

al plaintiff sought to enjoin enforcement of Ohio anti-nuisance statute

through constitutional challenge to statute in federal court); Younger v.

Haris, 402 U.S. 37 (approving abstention in case in which federal

plaintiff sought to enjoin state enforcement of California criminal

syndicalism statute through constitutional challenge to statute in

federal court).

The Younger doctrine may not even apply to the District of Colum-

bia, as it is unclear whether the District of Columbia is a state for

these purposes. See, e.g., 990 F.2d at 1322.

enjoin or to interfere with any District of Columbia judi-

cial proceeding, nor did they challenge the constitution-

ality of any District of Columbia statute. Rather, they

sought injunctive relief against executive-branch officials

to assure executive-branch compliance with statutory and

constitutional obligations imposed upon these officials.

To accept petitioners’ suggestion that the Younger doc-

trine is even relevant in a case such as this would trans-

form that narrow doctrine from one intended to protect

the integrity of state judicial proceedings into a broad

exhaustion requirement that would deprive plaintiffs of a

federal forum to vindicate federal rights and that would

immunize state executive-branch officials from scrutiny

by the federal courts.

Even if this were the type of case in which absten-

tion theoretically might be considered, it would be inap-

propriate in this case because there were no ongoing

State proceedings in which respondents could have litiga-

ted their federal claims. Petitioners contend that respon-

dents should have been required to bring this suit alleg-

ing systemic violations of federal and District of Colum-

bia law and seeking injunctive relief against executive-

branch officials of the District of Columbia as part of in-

dividual abuse and neglect proceedings in the Family Di-

vision of the Superior Court of the District of Columbia.

See Petition at 25.

The court of appeals, however, closely examined this

contention and found that a substantial portion of the

class is not involved in any District of Columbia pro-

ceedings, that the Family Division proceedings in which

some of the plaintiff class members are involved are ex-

tremely limited in scope and deal with issues wholly un-

related to the claims the children brought in federal

court, and that the rules governing Family Division pro-

ceedings preclude class actions. See 990 F.2d at 1323.

Most importantly, perhaps, the court of appeals pointed

to two decisions in which District of Columbia courts

————————————————

held that children in abuse-and-neglect proceedings

could not litigate in those proceedings the types of

claims at issue here. See id. Given this, the court of ap-

peals concluded that "there was no pending judicial pro-

ceeding in the District of Columbia" in which respon-

dents could have litigated their federal claims. See id. at

1323.

Petitioners do not even suggest that this conclusion

-- or the court of appeals’ description of Family Division

proceedings -- is erroneous.“ Because respondents had

no opportunity to litigate their federal claims in the

courts of the District of Columbia, no basis existed for

the district court to have abstained from adjudicating

those federal claims. See Moore, 442 U.S. at 425 ("The

pertinent issue is whether appellees’ constitutional claims

could have been raised in the pending state proceed-

ings").

Finally, petitioners’ abstention argument raises no

question worthy of a writ of certiorari. The lower courts

uniformly have ruled that children like respondents here

may litigate in federal court the federal claims at issue in

this case. See Joseph A. ex rel. Wolfe v. New Mexico De-

partment of Human Services, 575 F.Supp. 346, 350 (D.N.

M. 1983); Wilder v. Bernstein, 645 F.Supp. 1292, 1339

n.37 (S.D.N.Y. 1986), affd on other grounds, 848 F.2d

1338 (2d Cir. 1988); see also Winston v. Children and

Youth Services, 948 F.2d 1380, 1385-86 (3d Cir. 1991)(re-

jecting abstention argument in individual case), cert.

denied, __ U.S. __, 112 S.Ct. 2303 (1992); Timmy S. v.

Stumbo, 537 F.Supp. 39, 46 (E.D.Ky. 1981)(same).”°

‘ Petitioners assert only that "the claims of the children who are par-

ties to Family Division proceedings, even if constitutionally based, re-

late to core Family Division issues.” Petition at 20.

'* Petitioners’ effort to demonstrate a conflict among the circuits, see

Petition at 18-20, again relies upon the erroneous characterization of

(continued...)

And nothing in Moore v. Sims suggests that the court

of appeals "has decided a federal question in a way that

conflicts with applicable decisions of this Court." Sup.Ct.

R. 10.1(c).. In Moore -- as in every other Younger case

decided by this Court -- federal plaintiffs sought to at-

tack through a federal case state judicial proceedings in

which they were involved and in which they could have

litigated their federal claims. More specifically, in Moore

the federal plaintiffs were parents who, in an effort to

regain custody of their three children who were involved

in Texas abuse-and-neglect proceedings, had filed a fed-

eral suit seeking to enjoin those proceedings through a

constitutional challenge to the Texas statutes that

authorized the proceedings. See 442 U.S. at 418-22.

Finding that the parents could have litigated their consti-

tutional claims through the ongoing state proceedings,

this Court held that the district court should have ab-

stained. See id. at 423-35.

Moore is clearly distinguishable from this case.

Here, respondents do not challenge the constitutionality

of any state statute nor do they seek to enjoin or to in-

terfere with any ongoing or imminent state judicial pro-

ceeding. Moreover, the court of appeals expressly found

that respondents had no opportunity to litigate their fed-

eral claims in the courts of the District of Columbia."

'S (...continued)

this case as one involving individual child-custody issues, which it is

not.

'© Similarly, the Court’s decision in District of Columbia Court of Ap-

peals v. Feldman, 460 U.S. 462 (1983), has no bearing on this case. In

relevant part, the Court noted in Feldman that a district court did not

have the authority to review a judicial decision of the highest court of

the District of Columbia, that authority having been vested exclusively

in this Court. See id. at 476. In this case, respondents did not chal-

lenge in federal district court any ruling of the District of Columbia

Court of Appeals nor of any other court of the District of Columbia.

(continued...)

Il. THE COURT OF APPEALS CORRECTLY RE-

LIED ON PETITIONERS’ VIOLATIONS OF

LOCAL LAW

Petitioners next contend that the court of appeals er-

roneously relied on petitioners’ violations” of District of

Columbia law as a basis for affirming the district court’s

liability judgment. See Petition at 25-29." According to

petitioners, the court of appeals’ reliance on local law "is

a novel and startling principle of judicial decision-

making." /d. at 26 n.15.

'° (...continued)

In a related vein, petitioners’ contention that the section of the re-

medial order that discusses “dispositional hearings" improperly pro-

vides for federal court supervision of District of Columbia courts, see

Petition at 21, is groundless. The remedial order was negotiated by

the parties and agreed to by petitioners; it is not at issue in this ap-

peal. Moreover, the provision cited by petitioners imposes no obliga-

tion on the local courts and does not provide for district court over-

sight of those courts; its obligations run solely to petitioners.

'’ Petitioners’ characterization of their violations of local law as “al-

leged,” see Petition at 26, ignores the district court’s numerous find-

ings, which petitioners do not challenge, that petitioners in fact violat-

ed District of Columbia law. See 762 F.Supp. 959, 968-70 (protective

services; citing D.C. Code Ann. §6-2102(b)); id. at 970-71 (preventive

services; citing D.C. Code Ann. § §6-2105, 6-2124); id. at 971-72

(placements; citing D.C. Code Ann. §6-2123(a)); id. at 972-74 (case

planning; citing D.C. Code Ann. §2107(b)); id. at 963, 974 (in-custody

services; citing D.C. Code Ann. § §6-2107(b), 6-2123(a)(3), 6-2124); id.

at 974 (periodic reviews; citing D.C. Code Ann. § 16-2323(a)); id. at

974-75 (adoption services, citing D.C. Code Ann. §6-2123); id. at 964,

976 (information system; citing D.C. Code Ann. §6-2111); id. at 964,

977-79 (caseloads, staffing, supervision and training; citing D.C. Code

Ann. §6-2122); id. at 979 (monitoring of placements; citing D.C. Code

Ann. § §3-802, 3-805).

'* To the extent petitioners intend to suggest that no basis exists for

pendent jurisdiction, that suggestion is baseless. See United Mine

Workers of America v. Gibbs, 383 U.S. 715, 721-29 (1986). Moreover,

petitioners never challenged the district court’s authority to adjudicate

the local claims and thus waived this defense.

Petitioners correctly note that the court of appeals,

after having concluded that "[e]very claim supported by

federal law is also supported by District law," 990 F.2d at

1324, affirmed the district court’s liability order by rely-

ing solely on petitioners’ violations of local law, see id. at

1324-26. Petitioners’ suggestion, however, that the court

of appeals erred in this approach is contrary to an ex-

press direction of this Court:

This Court long has held generally that

when a federal court obtains jurisdiction

over a federal claim, it may adjudicate other

related claims over which the court other-

wise would not have jurisdiction. The Court

also has held that a federal court may resolve

a case solely on the basis of a pendent state-

law claim and that in fact the court usually

should do so in order to avoid federal consti-

tutional questions.

Pennhurst State School & Hospital v. Halderman, 465 U.S.

89, 117 (1984)(citing Ashwander v. TVA, 297 U.S. 288

(1936)(Branceis, J., concurring); other citations omitted;

emphasis added); see also United Mine Workers of Amen-

ca v. Gibbs, 383 U.S. 715, 722 (1966)(stating that "where

the federal question averred is not plainly lacking in sub-

Stance, even though the federal ground be not estab-

lished, [a federal court] may nevertheless retain and dis-

pose of the case upon the non-federal ground"). The

court of appeals did not err in relying on petitioners’ vio-

lations of District of Columbia law to affirm the district

court’s liability judgment.”

'? Petitioners’ reliance on Ankenbrandt v. Richards, 112 S.Ct. 2206

(1992), is misplaced. In relevant part, the Court held in Ankenbrandt

that federal diversity jurisdiction contains a "domestic relations excep-

tion" that encompasses "only cases involving the issuance of a divorce,

alimony, or child-custody decree." /d. at 2215. This case involves

none of these issues.

As for petitioners’ contention that respondents have

no cause of action under the relevant District of Colum-

bia law, it is untimely and wrong. It was not until they

filed a motion for rehearing en banc with the court of

appeals that petitioners raised for the first time any

question about respondents’ local-law claims.” Petition-

ers’ failure to present this issue to the district court or

the court of appeals precludes petitioners from raising it

at this stage of the proceedings. See, e.g., Brown v. Trus-

tees of Boston University, 891 F.2d 337, 358-59 (1st Cir.

1989)(refusing to address appellee’s challenge to district-

court disposition of pendent state-law claim because ap-

pellee had failed to present issue to district court).

Finally, even if petitioners’ had not waived this de-

fense, their contention is baseless. In affirming the dis-

trict court on local-law grounds, the court of appeals

relied on a 1987 decision from the highest court of the

District of Columbia that the unanimous panel found

"conclusively settled" the issue of respondents’ rights

under local law. See 990 F.2d at 1324 (discussing 7urner

v. District of Columbia, 532 A.2d 662 (D.C. App. 1987)).

CONCLUSION

This case presents no issues concerning comity, fed-

eralism, or the proper role of federal courts in oversee-

ing state decisions concerning child-custody issues.

Rather, the only question posed by this case is whether a

*® Though respondents pleaded violations of District statutory law as a

separate cause of action in their complaint and sought separate relicf

for those violations, petitioners never presented to the district court

any issue about respondents’ District-law claims. Similarly, after the

district court found that petitioners had violated many provisions of

District of Columbia law, petitioners failed to present any such issue

to the panel of the court of appeals.

| |

federal court can enjoin executive-branch officials from

engaging in a willful and pervasive pattern and practice

of violating federal and District of Columbia law in the

operation of a foster-care system. The court of appeals

correctly concluded that a federal court can enjoin such

practices. Respondents therefore respectfully urge this

Court to deny the petition for a writ of certiorari.

Respectfully submitted,

Christopher T. Dunn

(Counsel of Record)

Marcia Robinson Lowry

Children’s Rights Project

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Elizabeth S. Symonds

American Civil Liberties Union

Foundation

122 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 544-1681

Arthur B. Spitzer

ACLU of the National Capital

Area

1400 20th Street, N.W.

Washington, D.C. 20036

(202) 457-0800 4

Dated: December 8, 1993

APPENDIX

—— PT

CHILD ABUSE PREVENTION AND TREATMENT ACT

(Relevant excerpts)

§5106a. Grants to States for child abuse and neglect

prevention and treatment programs

(a) Development and operation grants

The Secretary, through the Center, is authorized to

make grants to the States for purposes of assisting the

States in developing, strengthening, and carrying out

child abuse and neglect prevention and treatment pro-

grams.

(b) Eligibility requirements

In order for a State to qualify for a grant under sub-

section (a) of this section, such State shall --

(1) have in effect a State law relating to child abuse

and neglect, including --

(A) provisions for the reporting of known and

suspected instances of child abuse and neglect; and

(B) provisions for immunity from prosecution

under State and local laws for persons who report

instances of child abuse or neglect for circumstances

arising from such reporting;

(2) provide that upon receipt of a report of known

or suspected instances of child abuse or neglect an inves-

tigation shall be initiated promptly to substantiate the

accuracy of the report, and, upon a finding of abuse or

neglect, immediate steps shall be taken to protect the

health and welfare of the abused or neglected child and

of any other child under the same care who may be in

danger of abuse or neglect;

(3) demonstrate that there are in effect throughout

the state, in connection with the enforcement of child

abuse and neglect laws and with the reporting of suspec-

ted instances of child abuse and neglect, such --

(A) administrative procedures;

(B) personnel trained in child abuse and neglect

prevention and treatment;

(D) institutional and other facilities (public and

private); and

(E) such related multidisciplinary programs and

services,

as may be necessary or appropriate to ensure that the

State will deal effectively with child abuse and neglect

cases in the State;

(d) sss

(e) Restrictions relating to child welfare services

Programs or projects relating to child abuse and ne-

glect assisted under part B of title IV of the Social Secu-

rity Act [42 U.S.C. 620 et seq.] shall comply with the re-

quirements set forth in paragraphs (1)(A), (2), (4), (5),

and (10) of subsection (b) of this section.

(f) sss

ADOPTION ASSISTANCE AND CHILD WELFARE

ACT of 1980

(Relevant Excerpts)

§627. Foster care protection required for addi-

tional payments

(a) Requisite additional steps to qualify

If, for any fiscal year after fiscal year 1979, there is

appropriated under section 620 of this title a sum in ex-

cess of $141,000,000, a State shall not be eligible for pay-

ment from its allotment in an amount greater than the

amount for which it would be eligible if such appropria-

tion were equal to $141,000,000, unless such State --

(1) has conducted an inventory of all children who

have been in foster care under the responsibility of the

State for a period of six months preceding the inventory,

and determined the appropriateness of, and necessity for,

the current foster placement, whether the child can be or

should be returned to his parents or should be freed for

adoption, and the services necessary to facilitate either

the return of the child or the placement of the child for

adoption or legal guardianship; and

(2) has implemented and is operating to the satis-

faction of the Secretary --

(A) a statewide information system from which

the status, demographic characteristics, location, and

goals for the placement of every child in foster care

or who has been in such care within the preceding

twelve months can readily be determined;

(B) a case review system (as defined in section

675(S) of this title) for each child receiving foster

care under the supervision of the State; and

where appropriate, return to families from which

they have been removed or be placed for adoption

or legal guardianship.

(b) Reduction of allotment

If, for each of any two consecutive fiscal years after

the fiscal year 1979, there is appropriated under section

620 of this title a sum equal to $325,000,000, each State’s

alletment amount for any fiscal year after such two con-

secutive fiscal years shall be reduced to an amount equal

to its allotment amount for the fiscal year 1979, unless

such State --

(1) has completed an inventory of the type specified

in subsection (a)(1) of this section;

(2) has implemented and is operating the program

and systems specified in subsection (a)(2) of this section;

and

(3) has implemented a preplacement preventive ser-

vice program designed to help children remain with their

families.

§671. State plan for foster care and adoption

assistance

(a) Requisite features of State plan

In order for a State to be eligible for payments

under this part, it shall have a plan approved by the Sec-

retary which --

(1) provides for foster care maintenance payments

in accordance with section 672 of this title and for adop-

tion assistance in accordance with section 673 of this

title;

(2) provides that the State agency responsible for

administering the program authorized by part B of this

subchapter shall administer, or supervise the administra-

tion of, the program authorized by this part;

(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;

(4) provides that the State shall assure that the pro-

grams at the local level assisted under this part will be

coordinated with the programs at the State or local level

assisted under parts A and B of this subchapter, under

subchapter XX of this chapter, and under any other ap-

propriate provision of Federal law;

(S) provides that the State will, in the administration

of its programs under this part, use such methods relat-

ing to the establishment and maintenance of personnel

standards on a merit basis as are found by the Secretary

to be necessary for the proper and efficient operation of

the programs, except that the Secretary shall exercise no

authority with respect to the selection, tenure of office,

or compensation of any individual employed in accord-

ance with such methods;

(6) provides that the State agency referred to in

paragraph (2)(hereinafter in this part referred to as the

"State agency") will make such reports, in such form and

containing such information as the Secretary may from

time to time require, and comply with such provisions as

the Secretary may from time to time find necessary to

assure the correctness and verification of such reports;

(7) provides that the State agency will monitor and

conduct periodic evaluations of activities carried out

under this part;

(8) provides safeguards which restrict the use of or

disclosure of information concerning individuals assisted

under the State plan to purposes directly connected with

(A) the administration of the plan of the State approved

under this part, the plan or program of the State under

part A, B, C, or D of this subchapter (including activities

under part F of this subchapter) or under subchapter I,

V, X, XIV, XVI (as in effect in Puerto Rico, Guam, and

the Virgin Islands), XIX, or XX of this chapter, or the

supplemental security income program established by

subchapter XVI of this chapter, (B) any investigation,

prosecution, or criminal or civil proceeding, conducted in

connection with the administration of any such plan or

program, (C) the administration of any other Federal or

federally assisted program which provides assistance, in

cash or in kind, of services, directly to individuals on the

basis of need, (D) any audit or similar activity conducted

in connection with the administration of any such plan or

program by any governmental agency which is authorized

by law to conduct such audit or activity, and (E)

reporting and providing information pursuant to para-

graph (9) to appropriate authorities with respect to

known or suspected child abuse or neglect; and the safe-

guards so provided shall prohibit disclosure, to any com-

mittee or legislative body (other than an agency referred

to in clause (D) with respect to an activity referred to in

such clause), of any informatior which identifies by

name or address any such applicant or recipient; except

that nothing contained herein shall preclude a State

from providing standards which restrict disclosures to

purposes more limited than those specified herein, or

which, in the case of adoptions, prevent disclosure en-

tirely;

(9) provides that the State agency will --

(A) report to an appropriate agency or official,

known or suspected instances of physical or mental

injury, sexual abuse or exploitation, or negligent

treatment or maltreatment of a child receiving aid

under part B of this subchapter or this part under

circumstances which indicate that the child’s health

or welfare is threatened thereby; and

(B) provide such information with respect to a

situation described in subparagraph (A) as the State

agency may have;

(10) provides for the establishment or designation of

a State authority or authorities which shall be responsi-

ble for establishing and maintaining standards for foster

family homes and child care institutions which are rea-

sonably in accord with recommended standards of na-

tional organizations concerned with standards for such

institutions or homes, including standards related to ad-

mission 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

or part B of this subchapter;

(11) provides for periodic review of the standards re-

ferred to in the preceding paragraph and amounts paid

as foster care maintenance payments and adoption assist-

ance to assure their continuing appropriateness;

(12) provides for granting an opportunity for a fair

hearing before the State agency to any individual whose

claim for benefits available pursuant to this part is

denied or is not acted upon with reasonable promptness;

(13) provides that the State shall arrange for a peri-

odic and independently conducted audit of the programs

assisted under this part and part B of this subchapter,

which shall be conducted no less frequently than once

every three years;

(14) provides (A) specific goals (which shall be es-

tablished by State law on or before October 1, 1982) for

each fiscal year (commencing with the fiscal year which

begins on October 1, 1983) as to the maximum number

of children (in absolute numbers or as a percentage of

all children in foster care with respect to whom assist-

ance under the plan is provided during such year) who,

at any time during such year, will remain in foster care

after having been in such care for a period in excess of

twenty-four months, and (B) a description of the steps

which will be taken by the State to achieve such goals;

(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 elimi-

nate the need for removal of the child from his home,

and (B) to make it possible for the child to return to his

home;

(16) provides for the development of a case plan (as

defined in section 675(1) of this title) for each child re-

ceiving 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; and

(17) provides that, where appropriate, all steps will

be taken, including cooperative efforts with the State

agencies administering the plans approved under parts A

and D of this subchapter, to secure an assignment to the

State of any rights to support on behalf of each child re-

ceiving foster care maintenance payments under this

part.

§675. Definitions

As used in this part or part B of this subchapter:

(1) The term "case plan" means a written document

which includes at least the following:

(A) A description of the type of home or institu-

tion in which a child is to be placed, including a dis-

cussion of the appropriateness of the placement and

how the agency which is responsible for the child

plans to carry out the voluntary placement agree-

ment 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

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 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.

health and education reccrds 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 enrolled at the time

of placement;

(v) a record of the child’s immunizations;

(vi) the child’s known medical problems;

(vii) the child’s medications; and

(viii) any other relevant health and educa-

tion information concerning the child deter-

mined to be appropriate by the State agency.

Where appropriate, for a child age 16 or over, the case

plan must also include a written description of the

programs and services which will help such child prepare

for the transition from foster care to independent living.

(2) The term "parents" means biological or adoptive

parents or legal guardians, as determined by applicable

State law.

(3) The term "adoption assistance agreement" means

a written agreement, binding on the parties to the

agreement, between the State agency, other relevant

agencies, and the prospective adoptive parents of a

minor child which at a minimum (A) specifies the nature

and amount of any payments, services, and assistance to

be provided under such agreement, and (B) stipulates

that the agreement shall remain in effect regardless of

the State of which the adoptive parents are residents at

any given time. The agreement shall contain provisions

for the protection (under an interstate compact approved

by the Secretary or otherwise) of the interests of the

child in cases where the adoptive parents and child move

to another State while the agreement is effective.

(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.

(B) In cases where --

(i) a child placed in a foster family home or

child-care institution is the parent of a son or

daughter who is in the same home or institution, and

(ii) payments described in subparagraph (A) are

being made under this part with respect to such

child,

the foster care maintenance payments made with re-

spect to such child as otherwise determined under

subparagraph (A) shall also include such amounts as

may be necessary to cover the cost of the items de-

scribed in that subparagraph with respect to such son

or daughter.

(S) The term "case review system" means a proce-

dure for assuring that --

(A) each child has a case plan designed to

achieve placement in the least restrictive (most

family like) setting available and in close proximity

to the parents’ home, consistent with the best

interest and special needs of the child,

(B) the status of each child is reviewed period-

ically but no less frequently that once every six

months by either a court or by administrative review

10a

(as defined in paragraph (6)) in order to determine

the continuing necessity for and appropriateness of

the placement, the extent of compliance with the

case plan, and the extent of progress which has been

made toward alleviating or mitigating the causes

necessitating placement in foster care, and to project

a likely date by which the child may be returned to

the home or placed for adoption or legal guardian-

ship,

safeguards will be applied, among other things, to

assure each child in foster care under the

supervision of the State of a dispositional hearing to

be held, in a family or juvenile court or another

court (including a tribal court) of competent

jurisdiction, or by an administrative body appointed

or approved by the court, no later than eighteen

months after the original placement (and

periodically thereafter during the continuation of

foster care), which hearing shall determine the

future status of the child (including, but not limited

to, whether the child should be returned to the

parent, should be continued in foster care for a

specified period, should be place for adoption, or

should (because of the child’s special needs or

circumstances) be continued in foster care on a

permanent or long-term basis) and, in the case of a

child who has attained age 16, the services needed

to assist the child to make the transition from foster

care to independent living; and_ procedural

safeguards shall also be applied with respect to

parental rights pertaining to the removal of the child

from the home of his parents, to a change in the

child’s placement, and to any determination affecting

visitation privileges of parents; and

(D)a child’s health and education record (as

described in paragraph (1)(A)) is reviewed and up-

lla

dated, and 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.

(6) The term "administrative review" means a review

open to the participation of the parents of the child,

conducted by a panel of appropriate persons at least one

of whom is not responsible for the case management of,

or the delivery of services to, either the child or the

parents who are the subject of the review.

THE DISTRICT OF COLUMBIA PREVENTION OF

CHILD ABUSE AND NEGLECT ACT OF 1977

§6-2102. Handling of reports -- By Division

(a) [2 eS

(b) The Division shall commence an investigation of all

reports alleging neglect other than abuse within 24 hours

of the receipt of the report except that when:

(1) A report alleges that a child is left alone or with

inadequate supervision, the Division shall commence an

investigation immediately. If the Division is unable to

dispatch a worker to the child forthwith, it shall inform

the police of the report;

(2) A report indicates the existence of an immediate

danger to a child and the immediate removal of the

child from his or her surroundings appears necessary de-

spite the available resources, the Division shall inform

the police of the contents of the report and request the

police to investigate. The Division shall immediately

commence a social investigation.

§6-2107. Social investigation; services; report

(a) see

(b) If there is a supported report, the agency responsible

12a

for the social investigation shall as soon as possible pre-

pare a plan for each child and family for whom services

are required on more than an emergency basis and shall

forthwith take such steps to ensure the protection of the

child and the preservation, rehabilitation and, when ap-

propriate, reunification of the family as may be necessary

to achieve the purposes of this act. Such steps may in-

clude but need not be limited to: (1) Arranging for nec-

essary protective, rehabilitative and financial services to

be provided to the child and the child’s family in a man-

ner which maintains the child in his or her home; (2) re-

ferring the child and the child’s family for placement in

a family shelter or other appropriate facility; (3) securing

services aimed at reuniting (with his or her family) a

child taken into custody; (4) providing or making specific

arrangements for the case management of each case

when child protective services are required. To the max-

imum extent possible, the resources of the community

(public and private) shall be utilized for the provision of

services and case management.

§6-2111. Establishment; purposes; staff

(a) There is hereby established a Child Protection Reg-

ister to be maintained by the Division.

(b) The purposes of the Register are to:

(1) Maintain a confidential index of cases of abused

and neglected children;

(2) Assist in the identification and treatment of

abused and neglected children and their families; and

(3) Serve as a resource for the evaluation, manage-

ment, and planning of programs and services for abused

and neglected children.

13a

signed to maintain the Child Protection Register shall

maintain 24-hour, 7 day-a-week telephone lines which

may be combined with the 24-hour intake components

described in subchapter III of this chapter.

(d) Said staff shall:

(1) Receive reports and information necessary for

the operation of the Child Protection Register and make

appropriate entries in such Register as required by §6-

2112(a); and

(2) Release information contained in the Child Pro-

tection Register in a manner consistent with this act.

(1973 Ed., §6-2111; Sept. 23, 1977, D.C. Law 2-22, title

II, §201, 24 DCR 3341.)

§6-2122. Organization

(a) zs

(b) ssf

personnel, and resources to accomplish the purposes of

this act, including the capacity to provide emergency and

continuing service resources to abused and neglected

children and their families.

(d) Staff qualifications, caseload levels, and supervision

requirements shall be guided by standards set by the

Child Welfare League of America or other child welfare

organizations, shall be published in the District of Co-

lumbia Register for public comments, and shall be re-

viewed by the mayor’s Interagency interdepartmental

Committee on Abuse and Neglect.

(e) ss

§6-2123. Duties and responsibilities

(a) The Chief of the Division shall have the following

duties and responsibilities, any of which may be contract-

l4a

ed for with private or other public agencies:

(1) To receive and investigate reports of neglect as

provided in §103 of this act, and §§6-2102 and 6-2104

and to assist in the determination of the need for the re-

moval of an abused child as provided in §6-2105:

(2) Within 90 days of taking a child into custody

pursuant to paragraph (1) of subsection (c) of §6-2124,

to return the child to the home or to request the filing

of a neglect petition in the Family Division of the Supe-

rior Court of the District of Columbia;

(3) To maintain a program of treatment and ser-

vices for families of neglected and abused children;

(4) To prepare annually a plan for child protective

services which shall be reviewed and commented on by

the Mayor’s Committee on Child Abuse and Neglect.

The plan shall:

(A) Describe the division’s implementation of

this act, including its organization, staffing, method

of operations and financing, and programs and pro-

cedures for the receipt, investigation and verification

of reports;

(B) Describe the provisions for the determina-

tion of protective and the treatment of ameliorative

service needs, and the provision of such services;

ily Division of the Superior Court of the District of

Columbia; and

(D) State the provisions for monitoring, evalua-

tion and planning. The 1st plan shall be made avail-

able to the public within 90 days of September 23,

1977;

(S) To encourage and assist in the formation of

child abuse/neglect teams in hospitals, health and men-

tal health clinics and other appropriate facilities in the

1Sa

District of Coiumbia; and

(6) To take whatever additional actions are neces-

sary to accomplish the purposes of this act.

(b) The Director of the Department of Human Ser-

vices, in addition to his or her other responsibilities,

shall have the following duties and responsibilities, any

of which may be contracted for with private or other

public agencies:

(1) When a child has been adjudicated a neglected

child and committed to the Department of Human Ser-

vices, to offer rehabilitative services to the child’s family;

(2) When rehabilitative services have failed to re-

unite a committed child and his or her family within a

reasonable time, to prepare a permanent plan for the

child;

(3) To establish or attempt to secure priority access

for protective service clients, by contract or agreement

with private organizations, other public agencies, or oth-

er Department of Human Services units, to services nec-

essary for the preservation or reunification of families.

These services may include but shall not be limited to:

(A) Emergency financial aid;

(B) Emergency caretakers;

(D) Family shelters;

(E) Emergency foster homes;

(F) Facilities providing medical, psychiatric or

other therapeutic services;

(G) Day care;

(H) Parent aides/lay therapists;

(4) To monitor and evaluate services to and needs

l6a

of neglected children and their families;

(S) To compile and publish training materials and

provide technical assistance on neglect prevention, iden-

tification and treatment; and

(6) To prepare and submit to the Mayor, the Coun-

cil of the District of Columbia, and the public an annual

report which shall include a description of the specific

actions taken to implement this act and an evaluation of

the Division’s performance. The report shall include a

full statistical analysis of case reports received, an evalu-

ation of services offered, recommendations for additional

legislation or services needed to fulfill the purposes of

this act and the comments submitted by the Mayor’s In-

teragency Interdepartmental Committee on Abuse and

Neglect. The ist report shall be submitted not later

than 1 year and 90 days after September 23, 1977. (1973

Ed., §6-2133; Sept. 23, 1977, D.C. Law 2-22, title III,

§303, 24 DCR 3341.)

§6-2124. Services authorized; custodial

placement; removal of child

(a) When an investigation made pursuant to §§6-2102

and 6-2103 indicates that a child is an abused or neglect-

ed child and in need of services, the Chief of the Divi-

sion is authorized to provide or secure any necessary ser-

vices which may include:

(1) Emergency financial aid;

(2) Temporary 3rd-party placement with responsible

neighbors or relatives for the child and his or her sib-

lings: Provided, that the person with whom the child is

placed shall not be considered an agent of the Depart-

ment of Human Services;

(3) Emergency caretaker(s) who enter the home and

provide temporary care for the child and his or her sib-

lings in appropriate cases, when the consent of the par-

17a

ent or other custodian cannot be obtained, notwithstand-

ing the provisions of the Act of March 3, 1901, as

amended (31 Stat. 1324);

(4) The placement of homemakers in the home to

maintain the child and his or her siblings or to assist the

parent or other caretaker in discharging his or her re-

sponsibilities to the child;

(S) Day care for the child and his or her siblings;

(6) Counselling services for the child and his or her

family;

(7) Medical evaluation and/or emergency treatment

of the child by a qualified physician; and

(8) Other appropriate services or resources available

in the community.

(b) When an investigation indicates that a child has

been left alone or with inadequate supervision and a

3rd-party placement cannot be made, the Division is au-

thorized to make a temporary custodial placement of the

child: Provided, that:

(1) Notice is left for the parent or custodian which

shall state the procedure for reclaiming the child;

(2) Efforts continue to locate the parent;

(3) The child is returned forthwith upon the request

of the parent or custodian, unless there is additional evi-

dence of immediate danger to the child and police ac-

tion is taken pursuant to §16-2309 (3) or 94); and

(4) A complaint alleging neglect is filed with the Su-

perior Court of the District of Columbia:

(A) At the end of 5 days if the parent or custo-

dian fails to claim the child within that time; or

(B) Immediately upon the discovery of addition-

al evidence of immediate danger to the child.

18a

6-2103 indicates that a child is an abused or a neglected

child and when it has been determined that the child

cannot be adequately protected by any of the services set

forth in subsection (a) or (b) of this section or by any

other services, the Chief of the Division is authorized to:

(1) Remove the child with the consent of the par-

ent, guardian, or other person acting in loco parentis;

(2) Request the Corporation Counsel of the District

of Columbia to petition the Family Division of the Supe-

rior Court of the District of Columbia for a finding of

neglect and, where appropriate, the removal of the child;

and

(3) Request the police to remove the child when the

consent of a parent, guardian or other custodian cannot

be obtained and the need to protect the child does not

allow sufficient time to obtain a court order. (1973 Ed.,

§6-2134; Sept. 23, 1977, D.C. Law 2-22; title III, §304, 24

DCR 3341.)

§ 16-2323. Review of dispositional orders

(a) When a child has been adjudicated neglected and a

dispositional order has been entered by the Division, the

Division shall hold a review hearing.

(1) at least every six (6) months for a child under

the age of six (6) years who is committed to the custody

of an agency, department, or institution;

(2) at least every six (6) months for a child of any

age who is committed to the custody of an agency, de-

partment, or institution but has not been committed for

longer than two (2) years;

(3) at least every year for all other children.

(b) set

19a

(d) ss

THE DISTRICT OF COLUMBIA

YOUTH RESIDENTIAL FACILITIES LICENSURE

ACT OF 1986

(Relevant Excerpts)

§3-802. License requirements

(a) Except as provided in subsections (b) and (c) of this

section, it shall be unlawful to operate a facility in the

District, whether public or private, for profit or not for

profit, without being licensed by the Mayor. Each facili-

ty shall be licensed by both its type and the cial of

care provided.

(b) Facilities that, before August 13, 1986, were not or

would not have been subject to District licensure may

operate without a license until 6 months after the issu-

ance of applicable rules under §3-803.

by the Mayor on an application for licensure renewal or

initial licensure under subsection (b) of this section shail

not be deemed unlawful if a completed application was

timely filed but, through no fault of the facility’s admin-

istrator or adult caregiver(s), the Mayor has failed to act

on the application before the expiration of the facility’s

current license or, under subsection (b) of this section,

its authorized period of operation. A facility operating

under this subsection shall comply with all other provi-

sions of this chapter and rules issued pursuant to this

chapter.

(d) Application forms shall include copies of all certifi-

cates of approval, authority, occupancy, or need that are

required as a precondition to lawful operation in the

District.

20a

(e) A license shall be valid only for the person(s), ad-

dress, type of facility, and level(s) of care stated on the

license.

(f) A license shall, whenever possible, give the Mayor at

least 60 days advance written notice before transferring

ownership of a facility, including, in the case of a corpo-

rate licensee, any transfer of the legal or beneficial own-

ership of 10% or more of the stock of the corporation.

Upon notification, the Mayor may conduct an investiga-

tion or require reinspection to ensure that the facility

will remain in compliance with this chapter, the rules is-

sued pursuant to this chapter, and all other applicable

laws.

(g) Unless sooner terminated or renewed, a license re-

quired by this chapter shall expire 1 year from the date

it was issued or last renewed.

(h) A facility shall promptly honor all requests by Dis-

trict government officials, residents, and members of the

public to inspect its license. (Aug. 13, 1986, D.C. Law 6-

139, §3, 33 DCR 3804.)

§3-803. Rules

(a) The Mayor shall, no later than 12 months after

August 13, 1986, and pursuant to subchapter I of Chap-

ter 15 of Title 1, issue all rules necessary to carry out the

purposes of this chapter. These rules may categorize

and define the various types of facilities, may establish li-

censure fees, and shall at a minimum include:

(1) Procedures governing the issuance, renewal, con-

version, suspension, and revocation of licenses, the

orderly transfer and discharge of residents, the receipt

and investigation of complaints or allegations of abuse,

the issuance of variances, and appeals from licensure-

related decisions;

(2) A statement of residents’ rights and responsibili-

2la

ties for each type of facility;

(3) Standards for continuing care, emergency care,

therapeutic care, and aftercare; and

(4) Standards for each type of facility, including

(when applicable), but not necessarily limited to:

(A) Programmatic standards with respect to edu-

cational, rehabilitative, and mental health services,

recreational activities, parental and family involve-

ment, the use of discipline and restraint, and the

prevention of abuse;

(B) Personnel and staffing standards with re-

spect to the ratio of staff to residents, caregiver

qualifications, and ongoing staff and volunteer train-

ing;

-(C) Personal care standards with respect to resi-

dent nutrition, hygiene, and emergency and routine

health care;

(D) Confidentiality and privacy standards with

respect to a resident’s person, property, living quar-

ters, case records, and subjection to searches for

contraband;

(E) Safety and sanitation standards with respect

to all parts of the facility and grounds, fire protec-

tion and prevention, first aid, and the facility’s elec-

4 trical, heating, cooling, ventilation, and water sys-

tems;

(F) Environmental, structural, and architectural

standards; and

(G) Administrative standards with respect to res-

ident admissions and discharges, operating proce-

dures, fiscal management, complaint investigation

and review, quality assurance, recordkeeping, and re-

porting.

(b) The standards adopted under subsection (a)(4)(A) of

this section shall reflect a strong presumption that paren-

tal and family contact is in a resident’s best interest and

that active parental and family involvement is essential

to a resident’s care.

after the issuance of rules under subsection (a) of this

section, all facilities shall be licensed in accordance with

those rules. ‘

(d) No later than 30 days after August 13, 1986, the

Mayor shall appoint an advisory task force composed of

social service, mental health, and education profession-

als, child welfare advocates, facility providers, community

representatives, and representatives from relevant Dis-

trict government agencies. Within a time frame estab-

lished by the Mayor, this task force shall formulate and

present to the Mayor detailed, proposed standards for

the rules required by subsection (a)(2) through (4) of

this section. The Mayor shall give substantial weight to

the task force’s recommendations and shall, on a regular

basis before publication of proposed rules, maintain a

formal, structured dialogue with task force representa-

tives while reviewing and acting on those recommenda-

tions.

(e)(1) The Mayor may, upon a showing of extreme hard-

ship and manifest public need and if not inconsistent

with other provisions of this chapter or deleterious to

resident health, safety, or welfare, grant variances to pri-

vate facilities with respect to the standards established

under subsection (a)(3) and (4) of this section. The

Mayor shall maintain a public record listing all variances

granted under this subsection and containing a complete

written explanation of the basis for each variance.

(2) The Mayor shall not issue variances to facilities

owned or operated by the District government. (Aug. 13,

1986, D.C. Law 6-139, §4, 33 DCR 3804.)

23a

§3-805. Inspections

(a) (1) To ensure that each new facility will be in

compliance with this chapter, the rules issued pursuant

to this chapter, and all other applicable laws, the Mayor

shall conduct an on-site inspection before a facility’s

initial licensure. Instead of issuing a full-year license to

a new facility or licensee, the Mayor may issue a

provisional license under §3-807(b) pending satisfactory

completion of additional, follow-up inspections. After

initial licensure, the Mayor shall conduct at least 1 on-

site inspection before each licensure renewal.

(2) The Mayor shall at least once a year inspect all

facilities caring for District children outside the District

to ensure that each of these facilities is in substantial

compliance with this chapter, the rules issued pursuant

to this chapter, and all other applicable laws. One year

after the issuance of rules under §3-803, the Mayor shall

report to the Council on the cost and efficacy of imple-

menting this paragraph and on the extent to which facili-

ties caring for District children outside the District are

required by their respective jurisdictions to meet licen-

sure standards comparable to those adopted under §3-

803. Within 45 days after receiving the Mayor’s report,

the Council shall determine whether this paragraph

should be amended to authorize the Mayor to accept li-

censure by other jurisdictions in lieu of conducting annu-

al inspections.

(b) The Mayor may at any reasonable hour enter a facil-

ity for the purpose of conducting an announced or unan-

nounced inspection to check for compliance with this

chapter, a rule issued pursuant to this chapter, or any

other District or locally enforceable federal law. When

conducting an inspection, especially of a foster home, the

Mayor shall respect the homelike atmosphere of the fa-

cility and the reasonable privacy interests of its residents

and adult caregivers.

24a

ing a facility for the purpose of casework or monitoring,

observes a condition that he or she believes in violation

of this chapter, a rule issued pursuant to this chapter, or

any other district or federal law shall, no later than 7

days after making the observation and if not previously

reported, report this suspected violation to the Depart-

ment of Consumer and Regulatory Affairs ("DCRA").

(d) The Mayor shall make all licensure and inspection

reports available to the public upon request and shall

notify all child-placing agencies in the District whenever

a facility’s license is suspended, revoked, converted to a

provisional or restricted license, or not renewed. (Aug.

13, 1986, D.C. Law 6-139, §6, 33 DCR 3804.)

25a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.