June 01, 2012

Government Officials Had Duty to Protect Foster Children from Systemic Failures

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.

Ninth Circuit Court of Appeals found the district court erred in dismissing case on qualified immunity grounds and that foster children’s statutory and due process rights were violated. The allegations met qualified immunity exceptions and some allegations were regarding privately enforceable child welfare statutory provisions.

Henry A. v. Willden, 2012 WL 1561030 (9th Cir.).

A group of foster children in Clark County, Nevada filed suit under 42 U.S.C. § 1983 against state and county officials alleging violations of due process and statutory rights.

The plaintiffs claimed they were harmed as a result of systemic failures including the failure to train caseworkers, provide case plans to children and foster parents, provide medical care, provide guardians ad litem (GALs) to investigate abuse allegations in foster homes, and the failure to incorporate federal law into county policies.

Several examples of the impact of the alleged failures were noted. One foster child was reported to have waited for months in pain with an impacted colon because the county would not approve a colonoscopy despite his doctor’s recommendation. Treatment was finally provided when the condition became life-threatening, justifying an emergency visit.

Another child was discharged from a psychiatric facility without paperwork needed to fill her prescriptions, resulting in withdrawal. Several plaintiffs were alleged to have been left or placed in foster homes despite physical and sexual abuse complaints.

The district court dismissed the claims finding the defendants were entitled to qualified immunity.

The Ninth Circuit noted the substantive due process claims, the Fourteenth Amendment does not generally create a state duty to protect individuals from the actions of third parties. However, there are two exceptions: (1) Courts have recognized a special relationship exception when the state assumes some responsibility for the individual’s safety and well-being; and (2) A state-created danger exception arises when the state affirmatively places the individual in danger through deliberate indifference to a known and obvious danger.

The Ninth Circuit held the district court erred in finding the defendants were entitled to qualified immunity. The district court had improperly looked at each allegation and concluded the specific medical procedures had not been clearly established as a constitutional right. The Ninth Circuit found the allegations were sufficient to survive a motion to dismiss on qualified immunity grounds if they could show generally that the individuals had been deliberately indifferent to the children’s well-being when they had a responsibility for their care as foster children. A reasonable official would have understood that the defendants had responsibility for the children’s medical care and safety and that failing to address them would violate the children’s rights to adequate care.

The defendants could also be liable under a state-created danger exception. The complaint alleged affirmative actions that put the children in danger in that they where placed in homes despite abuse allegations. The rule that the district court relied on, that qualified immunity applied where the state did nothing but expose the individual to danger that already existed, was from a prior dissenting opinion, and not the law of the circuit. The correct test is that the state knowingly exposed the individual to a danger that the plaintiff would not have otherwise faced.

Regarding claims under 42 U.S.C. § 1983 that defendants violated federal statutory rights, there must be a showing of privately enforceable individual rights. This entails showing that the right was intended by the Congress to benefit the individual, is not so vague or amorphous as to strain judicial competence, and is mandatory rather than precatory.

Plaintiffs asserted the following statutory claims: (1) the case plans and records provisions under the Adoption Assistance and Child Welfare Act, (2) the Guardian Ad Litem (GAL) provisions of the Child Abuse Prevention and Treatment Act (CAPTA), and (3) the early intervention provisions of CAPTA and the Individuals with Disabilities in Education Act (IDEA). The district court had concluded that none of the provisions were privately enforceable.

Regarding the requirements that each child in foster care have a case plan and that records be provided to foster parents, the Ninth Circuit found they were privately enforceable rights. Both benefit the child individually, have specific judicially determinable requirements, and are couched in mandatory ‘shall’ language.

Unlike the case plan and records requirements, CAPTA’s GAL requirement and the early intervention services requirements of CAPTA and the IDEA are too general to create individually enforceable rights. Whereas the case plan and records requirements have detailed descriptions of what is to be done in each child’s case, the GAL and early intervention provisions merely require any state receiving the federal funds develop plans for providing these services. Further, the IDEA has a comprehensive enforcement scheme that precludes § 1983 enforcement.