June 01, 2015

Foster Children in Class Action Had Rights to Contact with Counsel and Discovery

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Danny B. v. Raimondo, 2015 WL 1787926 (1st Cir.).

Trial court erred in denying foster child plaintiffs the ability to speak with counsel and discovery regarding policy and practices of the agency. The denials violated due process without valid justification and essentially gutted the foster children’s case. The information sought was clearly relevant and discoverable.

Foster children in Rhode Island had been granted class-action status on a number of claims against the child welfare agency and other state officials. Broadly, the claims alleged substandard treatment in foster care in violation of substantive due process, state and federal statute. 

Because the plaintiffs were minors, their counsel initiated the suit as next friends under Federal Rule of Civil Procedure 17. 

The pretrial discovery phase was contentious and long. The trial judge and magistrate judge were heavily involved and had issued many motions to compel discovery. Many of these requests were still unfulfilled when the state sought to limit discovery to the named plaintiffs. The magistrate granted it in part, noting that the trial judge planned to first address the named plaintiffs’ claims before the class as a whole. A further order setting limits for the rest of the class did not follow promptly. 

The plaintiffs contended at trial that the order effectively prevented them from pursuing claims regarding agency policy or practice. Due to delays and some named plaintiffs aging out, making their claims moot, the children sought recertification of the class. This court held off on this.

The trial judge then set the case for trial, expressing frustration at the number and time of delays. The children objected, focusing on their lack of discovery about policy and practice of the agency. The judge felt they had had an opportunity to depose certain policymakers and should have sufficient information on those issues. 

With the approaching trial, the plaintiffs’ attorneys asked the agency to facilitate meetings with the child clients, but they refused. The judge denied their request to compel the agency to allow access, stating that she felt they were trying to obtain discovery beyond the deadline. However, this prevented the attorneys from being able to determine if any of the children should be witnesses. 

At trial, only two of the named plaintiffs remained due to aging out or adoption. The trial court found the plaintiffs failed to provide sufficient evidence that the agency had a policy or practice that put the children at an undue risk of harm. The plaintiffs appealed.

The First Circuit Court of Appeals reversed finding the plaintiffs were prejudiced by the lack of access to counsel and the limit on discovery was unreasonable. 

The First Circuit found the trial court abused its discretion in preventing the attorneys access to their clients. That the court denied it because it felt they wished to obtain other discovery was speculative at best; the attorneys had specifically requested access to prepare for trial. The due process clause strongly protects civil litigants’ right to the advice and assistance of counsel. As to the state’s claim that meetings might not be in the child’s best interests, there was no evidence or even a clear theory about why that would be true. 

There may be circumstances where a court can limit an attorney’s access to clients, but such limits must be tailored to a specific reason and none was offered here. 

As to harm suffered, denial of such an important due process right can presume harm.

Regarding the protective discovery order, the trial court erred in placing this limitation. While trial courts are given wide latitude to control the discovery process, there are limits. 

In this case, plaintiffs sued under section 1983 and had to show there was a policy or custom that violated their rights. This is especially crucial here as they sought an injunction for future protections for foster children, which had to address policies or customs head on. 

The plaintiffs argued that this protective order effectively barred them from all discovery of policies or practices. The court found issuing the protective order was an abuse of discretion. The information was clearly relevant and discoverable. Prejudice was shown when the trial court later dismissed the action because the plaintiffs failed to show sufficient evidence —evidence to which they were denied access.

The state’s contention that they provided policy and custom information at trial did not change the result since there was no way to know what the state may have held back. The court stressed that the state should not be the gatekeeper of evidence when it is the defendant.