Dt. Ct. Abstains from hearing Foster Care case
Keywords
The federal district court in Nebraska has dismissed entirely a case seeking systemic changes in the Nebraska foster care program, choosing to abstain from hearing plaintiffs’ claims under Younger v. Harris, 401 U.S. 37 (1971). Although the court decided that Younger abstention was warranted, the court addressed the validity of some (but not all) of plaintiffs’ claims, ruling that some were valid and other claims were not. The court specifically found that plaintiffs had an enforceable cause of action regarding their Early and Periodic Screening Diagnosis and Treatment (EPSDT) claims under Medicaid. Nevertheless, the entire case has been dismissed on Younger abstention grounds. Carson P. v. Heineman, 2007 WL 172482 (D. Neb. Jan. 19, 2007). The federal judge, Richard G. Kopf, was appointed by Bush I.
Procedurally, the district court issued a very short decision adopting in total the Magistrate Judge’s lengthy (and poorly written) Report and Recommendations. The crux of the decision is the Younger abstention discussion. While everything else in the opinion is really just dicta, the case denies class certification, holds some of the plaintiffs have standing, questions the standing of the next friends who filed on behalf of the foster children, rules that the foster care statutory provisions are not enforceable under 42 U.S.C. § 1983, and holds that the EPSDT claims under Medicaid are enforceable via § 1983. The court completely ignored the plaintiffs’ claim that they are intended third-party beneficiaries of Title IV-E and Title IV-B State Plan contracts entered into between the State and the United States Government and were deprived of rights and benefits owed to them under those contracts.
The court’s abstention discussion begins by noting that the foster children were in state custody, pursuant to ongoing jurisdiction of the Nebraska juvenile court system. The court chided the plaintiffs for merely requesting general declaratory and injunctive relief. The court stated: “the plaintiffs’ artful pleading and lack of specificity should not serve to circumvent the principles of comity protected by Younger abstention; that is, the plaintiffs’ failure to identify the specific relief requested should not assist them in defeating defendants’ motion to dismiss on the basis of Younger abstention.” The court extrapolated the specifics of an injunction that would remedy the violations alleged in the complaint, e.g. limits on the use of emergency shelters (not meant for children), segregation of dangerous children from other foster children, and provision of basic health services. The court concluded that “the plaintiffs are seeking relief that would interfere with the ongoing state dependency proceedings by placing decisions that are now in the hands of the state courts under the direction of the federal district court.” The court relied heavily on decisions from the Tenth and Eleventh Circuits that had similarly found Younger abstention warranted in cases involving systemic changes to foster care programs. 31 Foster Children v. Bush, 329 F.3d 1255, 1278-79 (11th Cir. 2003); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291-92 (10th Cir. 1999). The court cited but did not acknowledge the contrary holding in LaShawn A. by Moore v. Kelly, 990 F.3d 1319 (D.C. Cir. 1993).
Prior to deciding to abstain, the court denied plaintiffs’ motion for class certification. The decision on class certification followed the reasoning in the Eighth Circuit’s decision in Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006)(written up on the listserv – feel free to look on the NSCLC website if you missed it). Elizabeth M. denied class certification to female residents of state psychiatric hospitals who had suffered sexual abuse. In Elizabeth M., the court of appeals held that the case required an individualized inquiry as to whether an employee of the facility violated the resident’s substantive due process right to safety. The Eighth Circuit stated: “The presence of a common legal theory does not establish typicality when proof of a violation requires individualized inquiry.” The district court in Carson P. cited Elizabeth M. in its conclusion that: “The plaintiffs’ allegation of ‘systemic’ violations does not create a common issue of fact within this purported class. When the resolution of a ‘common’ legal issue is dependent on factual determinations that will be different for each putative class plaintiff, a common issue of law does not exist for the purposes of Rule 23(a)(2).” The Carson P. court similarly relied on Elizabeth M. in ruling that the class did not meet the typicality requirement for class certification.
The court dismissed the claims for injunctive and declaratory relief of two plaintiffs who were over 18 years of age, holding that their claims were moot, since they could never be readmitted to foster care. The court held that the remaining plaintiffs did have standing to bring claims of inadequate placements and care, even if their current placements were adequate. The court found that they had a future risk of injury from the state’s ongoing policies. The court left as an open question whether the next friends had standing to represent the foster children. The court noted the difficulty of finding adults to bring claims on behalf of foster children. Yet, the court found that “the next friends expended little, if any, effort to seek out sources and discover the current circumstances or the potential risk of harm faced by their assigned named plaintiff.” The court held that if abstention is not required, the named next friends could move to be appointed, providing evidence that they met the applicable standards for appointment.
Following the court’s decision to invoke Younger abstention, the court evaluated whether plaintiffs had a cause of action under 42 U.S.C. § 1983 to enforce the foster care statutory provisions and the EPSDT requirements in the Medicaid statute. The court held that various provisions of the Adoption Assistance and Child Welfare Act of 1980 (AACWA) did not confer enforceable rights. The court noted that the plaintiffs alleged violations of 42 U.S.C. § 671(a)(15), which was found unenforceable in Suter v. Artist M., 503 U.S. 347, 359 (1992). The court acknowledged that Congress enacted the “Suter fix” in response to that decision. 42 U.S.C. § 1320a-2. The court noted that the Suter fix explicitly did not alter the holding that § 671(a)(15) was unenforceable, and stated: “most courts hold that if § 1320a-2 effectively overruled anything in Suter, it overruled only that portion of the opinion identifying and allowing a court to rely exclusively on the ‘state plan’ criteria in determining the existence of a federal right.” The court held that § 671(a)(15) is “vague and amorphous” and therefore confers no individual rights. The court similarly held that other provisions of the AACWA were vague and amorphous, with an aggregate focus, not intended to benefit individuals nor to create federal rights.
The court cursorily held that the EPSDT provisions of the Medicaid Act did confer enforceable rights, as mandated by the Eighth Circuit’s decision in Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 443 F.3d 1005, 1016 (8th Cir. 2006). Nevertheless, this claim has been subsumed in the dismissal of the case under the Younger abstention doctrine.