BRYAN C et al v. LAMBREW et al
ORDER ON DEFENDANTS' MOTION TO DISMISS granting in part and denying in part 25 Motion to Dismiss By JUDGE NANCY TORRESEN. (lrt)
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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRYAN C., et al.,
JEANNE M. LAMBREW, et al.,
) Docket No. 1:21-cv-00005-NT
ORDER ON DEFENDANTS’ MOTION TO DISMISS
Before me is the Defendants’ motion to dismiss the Plaintiffs’ First Amended
Complaint (“FAC”). For the reasons stated below, the motion to dismiss is
GRANTED IN PART and DENIED IN PART.
The Plaintiffs are foster children currently in the custody of the State,2 each of
whom is represented by his/her state-appointed guardian ad litem as his/her next
friend (the “Next Friends”).3 The Plaintiffs seek to bring a class action against
Jeanne Lambrew, the Commissioner of the Maine Department of Health and Human
Services (“DHHS”), and Todd Landry, the Director of the Office of Child and Family
The facts below are drawn from the allegations in the First Amended Complaint (“FAC”),
which I take as true for the purposes of deciding a motion to dismiss. Alston v. Spiegel, 988 F.3d 564,
571 (1st Cir. 2021).
The Plaintiffs are identified by pseudonyms.
Several of the Plaintiffs share the same guardian ad litem, so there are three next friends
representing the six plaintiffs.
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Services (“OCFS”), both in their official capacities. The putative class consists of “all
children who are or will be in DHHS foster care custody and who are or will be
prescribed or administered one or more psychotropic medication while in state
care.” FAC ¶ 160 (ECF No. 22).
The Plaintiffs allege that DHHS’s system of administering psychotropic drugs
to foster children violates the Constitution and that DHHS’s recordkeeping violates
the federal Adoption Assistance and Child Welfare Act (“AACWA”). The factual
allegations are detailed and voluminous, but, in sum, the Plaintiffs generally allege
that the Defendants have failed to: (1) “maintain readily accessible, comprehensive,
and up-to-date medical records”; (2) provide all medical records to foster caregivers
promptly upon placement, or to all prescribing physicians for purposes of treatment;
(3) establish an adequate informed consent process both prior to and throughout
administration of psychotropic medications; and (4) maintain and operate a system
of secondary review by a child psychiatrist to ensure the safety of any psychotropic
medications, and combination of psychotropic medications, administered. FAC ¶ 5.
Plaintiff Bryan C. has been prescribed dosages of medications inappropriate
for a child of his size and age (seven). FAC ¶¶ 11, 16. For example, an outside doctor
“Psychotropic medications are powerful drugs that impact emotions and behavior, such as antianxiety agents, antidepressants, mood stabilizers, stimulants, and antipsychotics.” FAC ¶ 2 (ECF No.
22). These drugs can have serious side effects, including seizures, psychosis, suicidal ideation, selfharm, aggression, diabetes, organ damage, and even sudden death. FAC ¶ 2. These drugs are
particularly potent in children. FAC ¶ 2.
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not normally in charge of Bryan’s care determined that his prescription for Vyvanse
(a stimulant) was “entirely inappropriate” and should not have been prescribed to
Bryan at all, much less in the dosage he was receiving. FAC ¶¶ 13, 16. At one point,
a hospital directed that three of Bryan’s prescriptions should be discontinued, but
shortly thereafter, his prior prescriber reinstated two of these medications. FAC ¶ 27.
Bryan has suffered a number of severe side effects from these medications, some of
which have been treated by the administration of additional psychotropic drugs. FAC
¶¶ 17–24, 26.
There has been no “effective informed consent process through which an
objective decision-maker can consent to medication for Bryan,” his caseworkers are
not typically present at appointments when psychotropic medications are prescribed,
and Bryan’s caseworkers are sometimes only notified of a new prescription after the
medication has already begun to be administered. FAC ¶¶ 28–29. His Vyvanse
prescription was not subject to any secondary review. FAC ¶ 16.
The Plaintiffs also allege deficiencies in Bryan’s medical records. He has no
medical passport that has moved with him from placement to placement. FAC ¶ 31.
His caseworkers, clinicians, and advocates do not have ready access to his prior and
current medical records, impairing their ability to monitor his medications. FAC
¶¶ 32–33. And his caregivers, advocates, and treating physicians have not always
had access to updated medical records. FAC ¶¶ 30, 34. For example, Bryan received
a blood test months ago to screen for diabetes, but OCFS has been unable to produce
the records related to that test, and the results remain unknown. FAC ¶ 24.
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Plaintiff Henry B. has been administered as many as six psychotropic
medications at a time without any secondary review of the propriety of this practice.
FAC ¶¶ 42–43. Henry has suffered serious side effects from these medications. FAC
¶¶ 44–47. There is no adequate informed consent process for the administration of
psychotropic medications to Henry. FAC ¶ 48. In particular, the Defendants failed to
inform Henry that he was entitled to have a meaningful role in the decision-making
process with regard to his prescriptions. FAC ¶ 49. And despite OCFS policy requiring
individuals over the age of fourteen to consent to prescriptions in almost all
circumstances, Henry has not been included in informed consent conversations even
after turning fourteen. FAC ¶¶ 49, 259. Henry’s medical records are so poorly
maintained, it is not even clear what his mental health diagnoses are. FAC ¶ 53.
While in state custody, Plaintiff Trent W. was misdiagnosed with ADHD and
was administered psychotropic medication as a result of this misdiagnosis. FAC
¶¶ 59–60, 64–65. Trent continued to be administered medication for his ADHD while
in state custody even after it was confirmed that he did not have ADHD. FAC ¶¶ 63–
65, 69. In November 2020, Trent was hospitalized following an acute crisis, but at the
time of his hospitalization, the hospital lacked any medical records for him. FAC
¶¶ 70, 77. Trent’s guardian ad litem tried to obtain these medical records but was not
able to obtain all of them. FAC ¶ 78.
However, the Plaintiffs never allege that any of these issues are the fault of
the Defendants. That is, it is never alleged whether the Defendants played any role
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in Trent being administered medication for his ADHD when he did not have ADHD
or in the hospital lacking medical records for Trent when he was hospitalized. The
Plaintiffs only vaguely allege that the Defendants have violated Trent’s rights, FAC
¶ 80, which is not enough to sustain a claim. However, rather than dismiss Trent’s
claims outright, I will allow the Plaintiffs leave to amend. Should Trent file amended
claims and the Defendants consider those amended claims to still be deficient, the
Defendants are free to renew their motion to dismiss as to Trent W.
Prior to entering the custody of the State, Plaintiff Grayson M. had been
prescribed psychotropic medications that had an adverse effect on him, including
Risperidone (an antipsychotic). FAC ¶¶ 13, 88–89. Grayson informed his clinicians of
this, and his biological mother (who maintained parental rights) also expressed
concern about him being prescribed Risperidone. FAC ¶ 89. Nevertheless, Grayson
was prescribed—and continues to be prescribed—Risperidone. FAC ¶ 89. Grayson
has experienced serious side effects from his psychotropic medications. FAC ¶¶ 87,
90–91. Grayson and his biological mother have reported some of these side effects to
his clinician and caseworker, but no secondary review process has occurred. FAC
¶¶ 92–93. After Grayson tried to refuse his medications and after his biological
mother objected to his continued use of them, OCFS required Grayson to continue to
take them FAC ¶ 95. The informed consent process prior to the administration of
these medications was inadequate, and Grayson and his biological mother have had
little to no involvement in the decision-making process with respect to his
medications. FAC ¶¶ 94, 96.
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The Defendants have also failed to provide complete and accurate medical
records to Grayson, his caregivers, or his doctors. FAC ¶¶ 98, 99.
Plaintiff Kendall P. was administered psychotropic medications without an
adequate process of informed consent. FAC ¶¶ 114–15. Despite her repeated requests
to stop or revisit her medications, these pleas were often ignored. FAC ¶¶ 116–17.
Kendall is often notified of changes in her medication only after the changes have
already been made even though she is seventeen and thus her informed consent is
required under OCFS policy. FAC ¶¶ 103, 118–19, 121. She has suffered multiple
adverse side effects from the psychotropic medications administered to her. FAC
¶¶ 109–14, 119, 121. No secondary review process has been triggered by any of
Kendall’s objections or the side effects that she has suffered. FAC ¶ 123.
The Defendants have not provided Kendall, her caregivers, or her doctors
complete, updated medical records, and she has no portable record that can move
with her from placement to placement. FAC ¶¶ 124, 126.
Plaintiff Neville H. was administered psychotropic medications without an
adequate process of informed consent. FAC ¶¶ 143–46. Neville has experienced
adverse effects from his psychotropic medications. FAC ¶ 137–41. After Neville was
placed on Prozac (an antidepressant) at age five, his therapist expressed anger and
confusion about this decision to OCFS, but the Defendants did nothing to follow up
with the prescriber or conduct any secondary review. FAC ¶ 134. No meaningful
secondary review process has been conducted for any of Neville’s medications. FAC
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¶ 147. The Defendants have not provided complete, updated medical records to
Neville, his caregivers, or his medical providers, which has impaired his doctors’
ability to treat him. FAC ¶¶ 148–49.
The Plaintiffs put forth three causes of action: a substantive due process claim,
a procedural due process claim, and a statutory claim. The substantive due process
claim is premised on the Defendants’ duty to protect the children in their care, which
the Plaintiffs contend has been violated by the aforementioned actions. FAC ¶¶ 280–
81. In particular, the Plaintiffs contend that the Defendants have violated the
putative class members’ rights: (1) to protection from harm or unreasonable risk of
harm; (2) to necessary treatment, care, and services to protect them from harm; and
(3) to adequate supervision and monitoring of their health and safety. FAC ¶ 285.
With regard to the procedural due process claim, the Plaintiffs allege that they
have a substantial liberty interest in being free from the unnecessary administration
of psychotropic medication and that they have been deprived of this liberty interest
without sufficient procedural protections. FAC ¶¶ 288, 292–93.
The Plaintiffs also allege that the Defendants have violated their rights under
the AACWA to (1) have an individualized written case plan and (2) have their health
records reviewed, updated, and supplied to a foster parent or foster care provider at
the time of placement. FAC ¶ 296.
In their prayer for relief, the Plaintiffs request injunctive relief ordering the
Defendants to: (1) “implement and maintain a comprehensive and updated electronic
healthcare record for all children in DHHS foster care custody; (2) provide each child’s
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foster caretaker with the child’s complete medical history upon placement;
(3) promulgate an effective informed consent policy for psychotropic medications;
(4) develop, maintain, and review a system to track compliance with that informed
consent policy; (5) train all social workers and foster caretakers regarding the safe
administration of psychotropic drugs; (6) implement a secondary review system to
flag outlier or elevated risk prescription practices; and (7) require secondary review
by a child psychiatrist of all flagged prescription regimens. FAC ¶ 298(d).
The Defendants put forward three reasons why they contend the FAC should
be dismissed. Their primary argument is that the Court should abstain under
Younger v. Harris because the Plaintiffs’ cases are supervised by the state courts.
Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) 10–15 (ECF No. 25). Second, they argue that
the Plaintiffs’ guardians ad litem are not proper representatives of the Plaintiffs and
that this deprives the Court of subject matter jurisdiction. Defs.’ Mot. 15–18. Third,
the Defendants contend that the FAC fails to state any claim upon which relief can
be granted. Defs.’ Mot. 18–34. The Plaintiffs dispute each of these points.
In reviewing a motion to dismiss, I must “accept as true all well-pleaded facts
alleged in the complaint and draw all reasonable inferences therefrom in the pleader’s
favor.” Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021) (quoting Santiago v. Puerto
Rico, 655 F.3d 61, 72 (1st Cir. 2011)). “[A] complaint will survive a motion to dismiss
when it alleges ‘enough facts to state a claim to relief that is plausible on its face.’ ”
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Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
“plausible” if the facts alleged give rise to a reasonable inference of liability. Id.
“Plausible” means “more than merely possible” but does not require all facts
necessary to establish a prima facie case. Carrero-Ojeda v. Autoridad de Energía
Eléctrica, 755 F.3d 711, 717–18 (1st Cir. 2014) (internal quotation marks omitted).
I first address the Defendants’ argument that I should abstain under Younger
v. Harris, 401 U.S. 37 (1971), because exercising jurisdiction would interfere with the
state judicial system.
Younger abstention is one of the few doctrines that either requires or allows
federal courts to defer to state proceedings, and it embodies the principle that federal
courts should “refrain from interfering with certain state proceedings.” Sirva
Relocation, LLC v. Richie, 794 F.3d 185, 191 (1st Cir. 2015) (citation omitted). But
the Supreme Court’s “dominant instruction” to lower federal courts is that “even in
the presence of parallel state proceedings, abstention from the exercise of federal
jurisdiction is the ‘exception, not the rule.’ ” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.
69, 81–82 (2013) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).
“Federal courts . . . have ‘no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.’ ” Id. at 77 (quoting Cohens v. Virginia,
19 U.S. 264, 404 (1821)). “[F]ederal courts ordinarily should entertain and resolve on
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the merits an action within the scope of a jurisdictional grant, and should not ‘refuse
to decide a case in deference to the States.’ ” Id. at 73 (quoting New Orleans Pub.
Serv., Inc. v. Council of the City of New Orleans (NOPSI), 491 U.S. 350, 368 (1989)).
“Abstention is not in order simply because a pending state-court proceeding
involves the same subject matter.” Id. at 72. Only “exceptional circumstances”
warrant deviation from the general rule that federal courts must exercise the
jurisdiction that is given to them. Id. at 78 (quoting NOPSI, 491 U.S. at 368). Those
exceptional circumstances arise in three—and only three—contexts: (1) an ongoing
state criminal prosecution, (2) certain civil enforcement proceedings, and (3) “pending
‘civil proceedings involving certain orders uniquely in furtherance of the state courts’
ability to perform their judicial functions.’ ” Id. (quoting NOPSI, 491 U.S. at 368).
The first category (stemming from the facts of Younger itself) encompasses
state criminal prosecutions. See id. at 72. The second encompasses “state proceedings
‘akin to a criminal prosecution’ in ‘important respects.’ ” Id. at 79 (quoting Huffman
v. Pursue, Ltd., 420 U.S. 592, 604 (1975)). Cases of this kind typically arise from an
investigation that culminates in the filing of a formal complaint or charges by a state
actor “to sanction the federal plaintiff, i.e., the party challenging the state action, for
some wrongful act.” Id. at 79–80.
To illustrate the third category—“pending civil proceedings involving certain
orders uniquely in furtherance of the state courts’ ability to perform their judicial
functions”—the Sprint Court cited to two cases: Juidice v. Vail, 430 U.S. 327, 336
n.12 (1977) (plaintiffs who were held in contempt by state court judges sought relief
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in federal court), and Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987) (plaintiffs
challenged constitutionality of Texas bond provisions). See id. at 78–79. Both of those
cases rested on the importance of the States being able to enforce the orders and
judgments of their own courts. See id. at 79 (describing this category as “touch[ing]
on a state court’s ability to perform its judicial function”). Unlike cases involving the
validity of a state court judgment, “it has never been suggested that Younger requires
abstention in deference to a state judicial proceeding reviewing legislative or
executive action. Such a broad abstention requirement would make a mockery of the
rule that only exceptional circumstances justify a federal court’s refusal to decide a
case in deference to the States.” NOPSI, 491 U.S. at 368.
The analysis as to whether Younger abstention is appropriate begins with
examining whether a particular state proceeding falls within one of these three
defined categories. Sirva, 794 F.3d at 192–93. If the state proceeding at issue does
“fall[ ] within the Younger taxonomy,” the court next evaluates “whether the [socalled] Middlesex factors support abstention.” Id. at 193. That is, the court looks to
whether there is “an ongoing state judicial proceeding,” whether “the proceedings
implicate important state interests,” and whether “there is an adequate opportunity
in the state proceedings to raise constitutional challenges.” Middlesex Cnty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). “[I]f these two steps leave
the case on track for abstention,” the court then looks to whether any of the limited
exceptions to the Younger doctrine apply. Sirva, 794 F.3d at 193.
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It is important to emphasize that Sprint narrowed the scope of Younger to the
three specified categories. Id. at 189. Previously, many lower courts treated the
Middlesex factors as the dispositive test, regardless of whether a case fell into one of
the three specified categories. Id. at 192. In Sprint, the Supreme Court clarified that
this was not correct, emphasizing that a strict application of the Middlesex factors
“would extend Younger to virtually all parallel state and federal proceedings, at least
where a party could identify a plausibly important state interest.” 571 U.S. at 81. The
Court noted that such a result is not consistent with its repeated admonition that
“abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’ ”
Id. at 81–82 (quoting Midkiff, 467 U.S. at 236).
Maine’s Foster Care System
Maine law gives the Maine District Court jurisdiction over child protection
proceedings. 22 M.R.S. § 4031(1)(A). As a part of these proceedings, the Maine
District Court makes a determination as to whether the child is in “jeopardy,”
meaning whether the child has been the victim of serious abuse or neglect. Id.
§§ 4002(6), 4035. The court must review any case in which it has made a jeopardy
determination at least once every six months, although the court or the child’s
guardian ad litem may otherwise move for judicial review. Id. § 4038(1), (2). During
such a review, the court must assess “[t]he safety of the child” and other factors
regarding the placement of the child. Id. § 4038(5).
The Maine District Court has broad authority regarding what it can order in a
child protection proceeding, including “[n]ecessary emergency medical treatment for
the child” when the person who has custody of the child is unwilling or unable to
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consent. See generally id. § 4036. DHHS, a doctor, or the chief medical administrator
of a hospital may petition the court for a medical treatment order, and the court may
order such treatment if it “is necessary to treat or prevent an immediate risk of
serious injury.” Id. § 4071(1), (4).
In arguing for abstention, the Defendants rely on the outdated Middlesex
framework as being the dispositive test for whether abstention is appropriate. Defs.’
Mot. 10–11. The cases cited by the Defendants—all of which pre-date Sprint—do the
same. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1274–82 (11th Cir. 2003);
J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999); Carson P. ex rel.
Foreman v. Heineman, 240 F.R.D. 456, 523 (D. Neb. 2007); Laurie Q. v. Contra Costa
Cnty., 304 F. Supp. 2d 1185, 1194 (N.D. Cal. 2004). The Supreme Court eschewed this
approach in Sprint.5 See Sirva, 794 F.3d at 192.
The Plaintiffs contend that periodic individual child welfare state court
proceedings do not fit within any of the three Younger abstention categories. Because
the Defendants address only the Middlesex factors—that is, step two of the three-step
analysis laid out in Sirva—they fail to address how the state proceedings fit into one
of the three categories within the Younger taxonomy. See id. at 193. Even after the
Plaintiffs clearly raised the issue in their response, the Defendants did not address
The Defendants make a cursory “see also” cite to Sprint, but their analysis relies only on preSprint cases. See Defs.’ Mot. to Dismiss FAC (“Defs.’ Mot.”) 11 (ECF No. 25).
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the question in their reply brief, continuing to rely exclusively on the Middlesex
Because the state proceedings are not criminal cases, there can be no argument
that the first Younger abstention category applies. Nor does this case fall into the
second category, which involves quasi-criminal cases. As Justice Ginsburg explained
in Sprint, the quasi-criminal category of cases “are characteristically initiated to
sanction the federal plaintiff, i.e., the party challenging the state action, for some
wrongful act.” 571 U.S. at 79. While it is true that a state-initiated proceeding to gain
custody of children allegedly abused by their parents could fall into this category,6
here, the state proceedings are beyond the custody determination and are not
attempts to sanction a party by removing parental rights for some wrongful act. The
parallel proceedings involving the Plaintiffs may involve periodic reviews by the state
court, but they lack any element that would put them into the quasi-criminal
category. See Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 154 (D. Mass.
2011) (holding that Younger abstention was not warranted where “[p]laintiffs’ claims
The Defendants contend that Moore v. Sims, 442 U.S. 415 (1979) supports their contention
that abstention is required. Defs.’ Reply Mem. in Further Supp. of Mot. to Dismiss First Am. Compl.
(“Defs.’ Reply”) 4 n.2 (ECF No. 42). But Moore is a very different type of case from this one. In Moore,
parents brought suit in federal court after the state of Texas took temporary custody of their children
following a report of child abuse. 442 U.S. at 418–21. Notably, the Supreme Court found abstention to
be warranted because the State’s temporary removal of a child due to potential abuse was similar in
kind to the pending criminal proceedings at issue in Younger. Id. at 423. That same pursuit of a state
enforcement action occurring in the shadow of potential criminal conduct is lacking here. See M.B. ex
rel. Eggemeyer v. Corsi, No. 2:17-cv-04102-NKL, 2018 WL 327767, at *6 (W.D. Mo. Jan. 8, 2018) (“[T]he
operative fact here is not that the juvenile court placed a given child into [state] custody, but that [the
state] has custody over the child . . . .”).
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relate only to alleged injuries suffered while in [the Defendants’] custody”), aff’d, 774
F.3d 45 (1st Cir. 2014).
The third category involves federal plaintiffs seeking to undo state court
orders—such as a contempt or bond order—that are “uniquely in furtherance of the
state courts’ ability to perform their judicial functions.” Sprint, 491 U.S. at 78
(quoting NOPSI, 491 U.S. at 368). The Defendants make no effort to explain how they
would fit into this category. The Defendants identify no existing state court order that
this case would interfere with, let alone any order that is “uniquely in furtherance of
the state courts’ ability to perform their judicial functions.” Id. This lawsuit is about
the care that the Plaintiffs are receiving in the Defendants’ custody; it has nothing to
do with the rightness or wrongness of any order of the Maine District Court or its
authority to adjudicate any matters in the Plaintiffs’ cases. See M.B. ex rel. Eggemeyer
v. Corsi, No. 2:17-cv-04102-NKL, 2018 WL 327767, at *6 (W.D. Mo. Jan. 8, 2018);
Connor B., 771 F. Supp. 2d at 155 (“Plaintiffs’ claims do not implicate the proceedings
themselves, only the aftermath of the proceedings.”); Sam M. ex rel. Elliott v. Chafee,
800 F. Supp. 2d 363, 377 (D.R.I. 2011). “It is the executive’s actions that are being
questioned, not the power of the juvenile court.” M.B., 2018 WL 327767, at *6; accord
Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003). And Younger
has no applicability where state court involvement is limited to a review of executive
action. Connor B., 771 F. Supp. 2d at 154; see also NOPSI, 491 U.S. at 368 (explaining
that requiring Younger abstention “in deference to a state judicial proceeding
reviewing legislative or executive action . . . would make a mockery of the rule that
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only exceptional circumstances justify a federal court's refusal to decide a case in
deference to the States”). Because the Defendants fail to explain how they fit within
any of the Younger categories, their argument for Younger abstention falters at step
The Defendants contend that the Plaintiffs’ requested relief will interfere with
the Maine District Court’s ongoing review of the Plaintiffs’ cases, Defs.’ Mot. 11, but
they fail to explain why. They argue that their administration of psychotropic
medications and their medical recordkeeping are “questions that are entrusted to the
Maine District Court.” Defs.’ Mot. 12 (citing 22 M.R.S. §§ 4036(1)(H), 4038;
M.R.G.A.L. 4(c)(3), (6)–(7), (9)). But their cited statutes and rules do not speak to the
Maine District Court’s authority to alter the Defendants’ recordkeeping practices or
administration of medicine. The statutes barely allude to the Maine District Court’s
authority in the realm of medical care, and their discussion of medical care only
pertains to emergency treatment. The Defendants identify no order issued in any of
the Plaintiffs’ cases—or, frankly, in the case of any foster child—pertaining to medical
recordkeeping or the use of psychotropics despite the alleged pervasiveness of
psychotropics in foster care.7
The Defendants fail to show how any order from this Court would interfere
with any existing or potential order in the State court. “It would be absurd to conclude
A 2018 report by the Office of Inspector General for the United States Department of Health
and Human Services found that 32.7% of the children in foster care in Maine—1,155 children—were
treated with psychotropic medications in fiscal year 2013. FAC ¶ 231; U.S. Dep’t of Health & Hum.
Servs. Off. of Inspector Gen., Treatment Planning and Medication Monitoring Were Lacking for
Children in Foster Care Receiving Psychotropic Medication app. B (2018).
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that because a juvenile court might someday enter an order related to some subject
in this federal lawsuit . . . Younger abstention applies. To so hold would mean that a
federal court would always have to abstain [in] any dispute related to a foster child
[solely] because the juvenile court has continuing jurisdiction over the child.” M.B.,
2018 WL 327767, at *7; see also Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397
F.3d 56, 71 (1st Cir. 2005) (“[T]he mere possibility of inconsistent results in the future
is insufficient to justify Younger abstention.”). Moreover, the relief requested in this
case may well further the Maine District Court’s “own mission of ensuring that
children removed from their parents’ custody because of abuse or neglect are not
further harmed when the juvenile court orders them into the custody of the state.”
Kenny A., 218 F.R.D. at 286.
Finally, it is worth noting how different this case is from the cases relied on by
the Defendants.8 In 31 Foster Children, for example, the Eleventh Circuit found that
the plaintiffs’ requested relief would directly interfere with the plaintiffs’ juvenile
court proceedings “by placing decisions that [were previously] in the hands of the
state courts under the direction of the federal district court.” 329 F.3d at 1278. The
Tenth Circuit came to a similar conclusion in J.B. 186 F.3d at 1292. That is not so
The Defendants also complain that the Plaintiffs have not first raised these issues in state
court. And they appear to accuse the Plaintiffs’ guardians ad litem of “withholding” information from
the Maine District Court “in anticipation of bringing federal litigation.” Defs.’ Reply 5–6. Even
assuming the truth of this accusation, the Defendants identify no legal authority that says that claims
that can be raised in state court must be raised in state court prior to bringing a federal lawsuit. The
cases that the Defendants cite in an effort to justify their grievance involve a failure to pursue an
appeal, see Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975), and a failure to exhaust an
administrative process, see Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 221 (1st Cir. 2004); MaymóMeléndez v. Álvarez-Ramírez, 364 F.3d 27, 34–35 (1st Cir. 2004). Defs.’ Mot. 14–15. Those cases have
no application here.
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here. The Defendants fail to identify any decisions that the Plaintiffs are requesting
this Court to make that would normally be made by the Maine District Court. See
Kenny A., 218 F.R.D. at 287–88 (distinguishing 31 Foster Children—which was
binding precedent—based on the far-reaching relief the plaintiffs had requested in
that case and the potential for conflicting state and federal court orders if those
requests had been granted). As the Plaintiffs point out, numerous district courts have
held in cases challenging the administration of a state’s foster care system that
Younger abstention is not appropriate,9 including the only case that either of the
parties cite involving a state’s system of administering psychotropic drugs to foster
children, see M.B., 2018 WL 327767, at *1, *6–7.10
The Plaintiffs’ Next Friends
A minor plaintiff may bring a lawsuit in federal court through a representative,
such as a guardian. Fed. R. Civ. P. 17(c)(1)(A). “A minor . . . who does not have a duly
appointed representative may sue by a next friend or by a guardian ad litem.” Id.
17(c)(2). An individual’s capacity to represent a minor in federal court is governed by
state law. Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 86 (1st Cir. 2010). “The
See, e.g., Tinsley v. McKay, 156 F. Supp. 3d 1024, 1034, 1041 (D. Ariz. 2015); Connor B. ex rel.
Vigurs v. Patrick, 771 F. Supp.2d 142, 156 (D. Mass. 2011), aff’d, 774 F.3d 45 (1st Cir. 2014); Sam M.
ex rel. Elliott v. Chafee, 800 F. Supp. 2d 363, 380 (D.R.I. 2011); Dwayne B. v. Granholm, No. 06-13548,
2007 WL 1140920, at *7 (E.D. Mich. Apr. 17, 2007); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277,
285 (N.D. Ga. 2003); Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn. 2000);
Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 688 (S.D.N.Y. 1996), aff'd, 126 F.3d 372 (2d Cir.
The Defendants do not offer any way to distinguish M.B. and cite to it only once in a footnote
discussing the Plaintiffs’ procedural due process claim. See Defs.’ Reply 10 n.8.
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burden is on the ‘next friend’ clearly to establish the propriety of his status and
thereby justify the jurisdiction of the court.” Whitmore v. Arkansas, 495 U.S. 149, 164
Typically, the authority and responsibilities of a guardian ad litem are limited
“to child welfare and dependency matters brought before the court in which the
[guardian ad litem] is appointed.” Sam M., 608 F.3d at 86 n.8. Where state law does
not confer general authority on a guardian ad litem to represent a child outside of
family court proceedings, the guardian ad litem is not considered to be a
representative who can sue on behalf of a minor pursuant to Federal Rule of Civil
Procedure 17(c)(1). Id. at 87. However, a federal court can appoint a state-appointed
guardian ad litem as an unrepresented child’s representative pursuant to Rule
17(c)(2) if the guardian ad litem petitions the federal court to represent the child and
the court concludes that he/she is an appropriate next friend. Id. at 87 n.11.
In evaluating the suitability of a next friend for a foster child, the court should
examine whether the next friend is acting in good faith, is genuinely motivated to
help the child seek relief, is familiar with the child’s situation, understands the role
of a next friend, is able and willing to litigate on the child’s behalf, and is familiar
with the realities that foster children face. See id. at 92–94. The next friend need not
have a particularly close relationship with the child. See id. at 93–94 (allowing
professor who studied child maltreatment to act as next friend for children whom he
had never met where it was apparent that he was knowledgeable about the issues
and problems children face in foster care, he was familiar with what the plaintiffs
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had been through, and he had demonstrated a good faith desire to pursue the
children’s best interests).
Maine Law Pertaining to Guardians Ad Litem
The Maine District Court must appoint a guardian ad litem in most child
protection proceedings. 22 M.R.S. § 4005(1)(A). The guardian ad litem is obligated to
“act in pursuit of the best interests of the child,” meaning in a way that prioritizes
the child’s safety and well-being. Id. §§ 4002(1-C), 4005(1)(B). To fulfill this
obligation, the guardian ad litem must be given access to all relevant medical records
of the child. Id. § 4005(1)(B). The guardian ad litem is also charged with providing
biannual reports to the Maine District Court “regarding the guardian ad litem’s
activities on behalf of the child and recommendations concerning the manner in
which the court should proceed in the best interest of the child.” Id. The guardian ad
litem acts as an agent of the Maine District Court. Id. § 4005(1)(G).
Guardians ad litem are also subject to various rules promulgated by the
Supreme Judicial Court. See 4 M.R.S. § 1554(2). These rules “are designed to govern
and define the services provided by guardians ad litem to the [Maine District Court]
and to promote the best interests of the children whose interests they are appointed
to represent.” M.R.G.A.L. 1(b). The rules are to “be construed to secure the just,
speedy, and inexpensive determination of every action.” Id.
An individual appointed as a guardian ad litem may act only within the
confines of his/her appointment order and has no authority to perform any other
duties unless ordered by the Maine District Court. Id. 4(a)(4), (c). A guardian ad litem
may “advocate for appropriate services” for the child, including medical and mental
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health care. Id. 4(c)(7)(E). The guardian ad litem must always act in the best interests
of the child and must “exercise his or her independent judgment on behalf of the child
in all relevant matters.” Id. 5(b). Guardians ad litem are bound by confidentiality
requirements that prohibit them from disclosing information related to a case “to any
person who is not a party to the case, except as necessary to perform [their] duties,
or as may be specifically provided by law.” Id. 5(g). Guardians ad litem must disclose
to the Maine District Court if they are “a party to any case in court, other than in
[their] capacity as a guardian ad litem.” Id. 5(i)(5).
The Defendants raise seven objections to the Plaintiffs’ guardians ad litem
serving as their next friends: (1) guardians ad litem act as agents of the Maine
District Court; (2) their responsibilities are limited to proceedings in the appointment
order, and they have no authority to act beyond the appointment order; (3) the duty
of a guardian ad litem is to represent the best interests of the child, and their
obligations as next friends will force them to violate that duty; (4) in order to comply
with their discovery obligations, the guardians ad litem will be forced to disclose
confidential information that they are prohibited from disclosing; (5) the interests of
the Named Plaintiffs may conflict with the interests of other members of the putative
class; (6) the guardians ad litem have not alleged that they have disclosed their
participation in this lawsuit to the Maine District Court; and (7) the Next Friends
have not alleged that they have raised any of these issues in the Maine District Court.
Defs.’ Mot. 15–18.
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At bottom, the Defendants misunderstand the role of the Next Friends in this
Court. While these three individuals happen to be the Plaintiffs’ guardians ad litem
in their foster care proceedings, they are not acting as guardians ad litem in this case.
They are acting as the Plaintiffs’ next friends. To be sure, the Next Friends are
qualified to serve as the Plaintiffs’ next friends because of their experience as the
Plaintiffs’ guardians ad litem, but that does not mean that they are acting as the
Plaintiffs’ guardians ad litem in this action. To put it differently, even if the Plaintiffs
were to get different guardians ad litem tomorrow, that would not change the ability
of the Next Friends to serve as the Plaintiffs’ next friends in this litigation.
Rather, what matters is that all three be genuinely motivated to help the
Plaintiffs seek relief, be familiar with the Plaintiffs’ situation, understand the role of
a next friend, be able and willing to litigate on the Plaintiffs’ behalf, and be familiar
with the realities that foster children face. It is apparent from the FAC and the
Plaintiffs’ opposition that the Next Friends meet all of these criteria. The Defendants
dispute none of this.
Most of the Defendants’ objections are rooted in the contention that the Next
Friends are violating—or might violate—the Maine Rules for Guardians Ad Litem
(“MRGAL”) in bringing this action. But the Defendants fail to explain what relevance
that has to their ability to act as the Plaintiffs’ next friends in this proceeding. If the
Next Friends are in fact violating the MRGAL, the Defendants are free to raise this
issue with the Maine District Court and to give it the opportunity to decide whether
the Next Friends remain suitable guardians ad litem. That is not something to be
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litigated here.11 The Defendants conflate federal law requirements to act as a next
friend (which govern in this Court) with state law requirements to act as a guardian
ad litem (which do not).
The only one of the Defendants’ arguments that is not based on the Next
Friends’ purported violations of the MRGAL is the contention that the Named
Plaintiffs’ interests might conflict with the interests of the putative class and that the
Next Friends will not be able to represent all of the interests of the plaintiffs in the
putative class. This objection is premature and is more properly made in response to
a motion to certify the putative class.12
It is worth noting, however, that it is not clear that the Plaintiffs’ next friends (“the Next
Friends”) have violated—or are likely to violate—any of the Maine Rules for Guardians Ad Litem
(“MRGAL”). First, the Defendants contend that because the Next Friends are agents of the Maine
District Court, they are acting against an entity to whom they owe a duty. That is not true. Guardians
ad litem are agents of the court, not the government. This action is against the State, not the Maine
Second, the Defendants contend that the Next Friends might have to violate their duties to act
in the best interests of the Plaintiffs by disclosing information in discovery even when it is not in the
Plaintiffs’ best interests. This may be true, although it seems that the Plaintiffs’ guardians ad litem
might be subject to discovery even if they were not acting as Next Friends. Regardless, it may be the
case that this lawsuit is in the Plaintiffs’ best interests, regardless of what information might need to
be disclosed in discovery. And the ultimate duty of the guardians ad litem is to act in the best interests
of the children they represent.
Third, although the MRGAL generally prohibit the release of confidential information, this
only extends to any person who is not a party to the case. As the Plaintiffs point out, any confidential
information required to be disclosed in discovery will be disclosed to the Defendants, who are parties
to the proceedings in the Maine District Court. Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss
(“Pls.’ Opp’n”) 11–12 (ECF No. 36). In addition, this prohibition has exceptions for disclosures
required by law, and disclosures in discovery would seem to fall within that category.
Fourth, the Defendants complain that the Plaintiffs have not alleged that the Next Friends
notified the Maine District Court that they were bringing this suit or that they have raised any of
these issues in Maine District Court. But the Plaintiffs were not required to make those allegations in
their FAC, since they are not a component of any of their causes of action. It is unknown whether they
have provided any such information to the Maine District Court. It is also unknown whether the
guardians ad litem have sufficient information about all of the Plaintiffs’ cases to petition the Maine
District Court, since the Plaintiffs allege that some of their guardians ad litem (e.g., in the cases of
Bryan and Trent) have been unable to obtain the Plaintiffs’ medical records.
The Defendants also cite to an amicus brief filed in Sam M. by the National Association of
Counsel for Children for the proposition that guardians ad litem may have unwaivable conflicts. Defs.’
Mot. 17 (citing Br. for Nat’l Ass’n of Couns. for Child. et al. as Amici Curiae in Supp. of Pls.-Appellants
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“Important social interests are advanced by allowing minors access to a judicial
forum to vindicate their constitutional rights through a Next Friend . . . particularly
where, as here, the minors seek relief for alleged violations of the[ir] guardian’s duty
to protect them.” Sam M., 608 F.3d at 91–92. The burden is on the Next Friends to
prove their suitability, and I conclude that they have met their burden. I also note
that it is the Defendants who are in the best position to find someone to represent the
Plaintiffs since they “effectively control the children’s lives as the children’s legal
custodian.” Id. at 88 n.12. It is difficult to think of who could better act as the
Plaintiffs’ next friends than their guardians ad litem, and the Defendants do not
identify any alternatives.13 The Next Friends may permissibly act as next friends in
(“NACC Brief”) at 10, Sam M. ex rel. Elliot v. Carcieri, 608 F.3d 77 (1st Cir. 2010) (No. 09-1759), 2009
WL 6809239, at *10). The Defendants take this argument out of context. This amicus brief was filed
to argue that foster children should not be required to be represented by their state-appointed
guardians ad litem in federal court because, for example, unwaivable conflicts may arise. NACC Brief
at 28–30, 2009 WL 6809239, at *28–30. But the amicus brief acknowledges that a guardian ad litem
can sometimes be an appropriate representative for a foster child in federal court. NACC Brief at 19,
30, 2009 WL 6809239, at *19, *30.
The Defendants argue that a lack of a suitable next friend warrants dismissal for lack of
subject matter jurisdiction, but the support for this proposition is thin. The three cases that the
Defendants cite for support were all brought by next friends who were acting at odds with either the
party they were purporting to represent or that party’s legal guardian. In the first case, an activist
sought to sue on behalf of two incompetent plaintiffs, each of whom had a natural guardian (for one,
his mother; for the other, her brother). Developmental Disabilities Advoc. Ctr., Inc. v. Melton, 689 F.2d
281, 284–86 (1st Cir. 1982). Both guardians opposed the lawsuit. Id. at 285–86. Rule 17(c) of the
Federal Rules of Civil Procedure only allows the appointment of a next friend if a minor or incompetent
person lacks a proper guardian, unless the interests of the guardian and the minor or incompetent
plaintiff conflict. Id. The First Circuit affirmed the district court’s findings that the plaintiffs were
adequately represented by their guardians, who opposed the lawsuit, and that dismissal was
warranted. Id. at 286.
In the second, the plaintiff sought to bring a lawsuit, pro se, on behalf of her mother. GibsonKennedy ex rel. Gibson v. Slutsky, Civ. No. 13-4324, 2014 WL 317871, at *1 (E.D. Pa. Jan. 29,
2014), aff'd 650 F. App'x 122 (3d Cir. 2016). However, the Complaint was dismissed because not only
was the plaintiff not her mother’s guardian, but the court also found that a guardian cannot represent
an incompetent adult without the assistance of counsel. Id. at *4.
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Substantive Due Process
The Fourteenth Amendment provides that no State shall “deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1.
“[W]hen the State by the affirmative exercise of its power so restrains an individual’s
liberty that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs—e.g., food, clothing, shelter, medical care, and
reasonable safety—it transgresses the substantive limits on state action set by . . .
the Due Process Clause.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.
189, 200 (1989). “[I]t is the State’s affirmative act of restraining the individual’s
freedom to act on his own behalf” that creates the “deprivation of liberty” that triggers
the protections of the Due Process Clause. Id. “Whether the state deprived an
individual of ‘freedom to act on his own behalf,’ and is so subject to a correlative
In the third, a son, on behalf of his mother, sought to sue various defendants, including his
mother’s guardian, alleging that his mother’s involuntary placement in a nursing home and the
appointment of the guardian violated her constitutional rights. Bak v. Niagara Rehab. & Nursing Ctr.,
No. 13-CV-215S, 2014 WL 297346, at *1–2 (W.D.N.Y. Jan. 27, 2014). The court was suspicious of the
complaint, concluding that the son had named the guardian as a defendant in order to create a conflict
of interest such that the guardian could not represent his mother in the lawsuit. Id. at *5. And the
court was also suspicious of the fact that although the lawsuit was purportedly brought by the son to
protect his mother’s well-being, the lawsuit was seeking only monetary relief rather than injunctive
or declaratory relief related to his mother’s well-being. Id. The court thus concluded that the son was
not motivated by a sincere desire to seek justice on his mother’s behalf and that he could not
permissibly proceed as his mother’s next friend. Id.
It makes sense that a lawsuit would be dismissed for lack of jurisdiction where a person
purporting to represent the plaintiff was acting antagonistically toward the plaintiff or her legal
guardian and thus the plaintiff did not have a proper representative. This is analogous to a situation
where one person files a lawsuit on behalf of another person without that person’s knowledge or
permission. That lawsuit would, of course, be summarily dismissed. That is not the case here. The
Defendants cite to no case where plaintiffs were represented by representatives who were acting in
their best interest and the case was dismissed for lack of proper representation.
The short of it is that it cannot be the case that the Plaintiffs can be shut out of court merely
because they are minors. There must be someone who can suitably represent each of the Plaintiffs,
and their guardians ad litem appear to be in the best position to do so.
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constitutional duty, is often described as whether a ‘special relationship’ exists
between the state and the individual.” Connor B. ex rel. Vigurs v. Patrick, 774 F.3d
45, 53 (1st Cir. 2014) (quoting J.R. v. Gloria, 593 F.3d 73, 79 (1st Cir. 2010) (quoting
Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005)) (internal quotation marks
The First Circuit has tread lightly when faced with questions involving
substantive due process in the foster care context. See, e.g., id. at 52. It has assumed,
without deciding, that a child’s entry into foster care creates a special relationship,14
and it has assumed arguendo that the special relationship of foster care requires a
state to provide, among other things, a safe living environment and “care and
treatment through the exercise of accepted professional judgment.” Id. at 53. I
conclude that a child’s entry into foster care does create a special relationship
triggering at least some constitutional duty by the State to care for the children in its
In Connor B., the First Circuit also sidestepped the question of what standard
applies to a substantive due process claim in the foster care context. See id. at 54. The
court explained that two different standards have arisen in evaluating substantive
The unanimous consensus among the circuits is that a child’s entry into foster care does create
a relationship of constitutional significance. See Matican v. City of New York, 524 F.3d 151, 156 (2d
Cir. 2008); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000); Doe ex rel. Johnson v. S.C. Dep’t of Soc.
Servs., 597 F.3d 163, 175 (4th Cir. 2010); Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys,
675 F.3d 849, 856 (5th Cir. 2012) (en banc); Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Reed v.
Palmer, 906 F.3d 540, 552 (7th Cir. 2018); Norfleet ex rel. Norfleet v. Ark. Dep’t of Hum. Servs., 989
F.2d 289, 293 (8th Cir. 1993); Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012); Schwartz v.
Booker, 702 F.3d 573, 580 (10th Cir. 2012); Ray v. Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004); cf.
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201 n.9 (1989) (noting that placing a
child in a foster home might “give rise to an affirmative duty to protect”).
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due process violations: the “shocks the conscience” test from County of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998), and the absence of professional judgment test
outlined in Youngberg v. Romeo, 457 U.S. 307, 323 (1982). See id. at 53–54. The First
Circuit recognized that there might be some “tension” between the two tests but
decided that it did not need to reconcile these tests because it found that the plaintiffs
could not meet the Youngberg standard. See id. at 54.15
The First Circuit has stated that the “shocks the conscience” test “governs all
substantive due process claims based on executive . . . action.” Martínez v. Cui, 608
F.3d 54, 64 (1st Cir. 2010) (emphasis deleted). The “shocks the conscience” standard
requires an evaluation of “whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Lewis, 523 U.S. at 847 n.8. “In order to shock the conscience, the conduct
must be ‘truly outrageous, uncivilized, and intolerable.’ ” McConkie v. Nichols, 446
F.3d 258, 260 (1st Cir. 2006) (quoting Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st
“[C]onduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-shocking
In the district court, the court had concluded that “to establish a substantive due process claim,
Plaintiffs must show that Defendants’ conduct represented a substantial departure from accepted
professional judgment, which deprived them of conditions of reasonable care and safety, and that such
conduct shocks the conscience.” Connor B., 771 F. Supp. 2d at 163. Requiring proof of an absence of
professional judgment makes sense because “administration of a foster care system is a matter of
professional judgment . . . involving specialized expertise and professional norms.” Connor B., 774 F.3d
at 54 n.10. And the Tenth Circuit has pointed out that there is not much difference between these two
standards in the foster care context. See Yvonne L. ex rel. Lewis v. N.M. Dep’t of Hum. Servs., 959 F.2d
883, 894 (10th Cir. 1992).
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level.” Lewis, 523 U.S. at 849. Although the assessment is more difficult for conduct
that is not intentional, deliberately indifferent behavior can also shock the
conscience. Id. at 849–52. A plaintiff can establish conscience-shocking deliberate
indifference by showing that the state actor “knew of a substantial risk of serious
harm and disregarded that risk” in a situation where the state actor had the
opportunity to make an unhurried judgment. Irish v. Fowler, 979 F.3d 65, 75 (1st Cir.
2020). Deliberate indifference is most pronounced “where the state official performs
multiple acts of indifference” that collectively create a “risk of acute and severe
danger.” Id. This analysis is necessarily fact-intensive. Lewis, 523 U.S. at 850.
“Deliberate indifference that shocks in one environment may not be so patently
egregious in another . . . .” Id.
The “professional judgment” standard demands that a reviewing court “show
deference to the judgment exercised by a qualified professional.” Youngberg, 457 U.S.
at 322. Decisions made by a professional are “presumptively valid” and may result in
liability “only when the decision by the professional is such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that
the person responsible actually did not base the decision on such a judgment.” Id. at
323. “[A] substantial departure from accepted professional judgment may shock the
conscience under some circumstances but not others.” Connor B., 771 F. Supp. 2d at
In support of their substantive due process claim, the Plaintiffs have alleged
that the Defendants are facilitating the administration of potentially harmful
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medications without consent or adequate medical justification and without ensuring
sufficient oversight. The Plaintiffs allege serious deficiencies in informed consent,
FAC ¶ 254, which is a fundamental aspect of medical care, see Woolley v. Henderson,
418 A.2d 1123, 1128 n.3 (Me. 1980) (noting the fiduciary character of the physicianpatient relationship). They allege that the Defendants have forced them to take
medications to which they have expressed their opposition, that are medically
improper, that are inappropriate for their age, and that are excessive in dosage and
in the number of medications administered. The Plaintiffs also allege that the
Defendants are aware not only of the harms that have been caused to the individual
Plaintiffs but also of the general harms caused by the Defendants’ administration of
psychotropic drugs. FAC ¶¶ 210–16.
The Plaintiffs further allege that the Defendants have provided caregivers and
medical providers with inaccurate medical records. See M.B., 2018 WL 327767, at
*10. Failure to provide medical records to caregivers and medical providers means
that those charged with caring for the Plaintiffs are less aware of what drugs the
Plaintiffs are taking, what side effects to look out for, and how to take care of that
particular child. FAC ¶¶ 70, 77 (describing how Trent was hospitalized following an
acute crisis but the hospital lacked any medical records for him), 249.16
The Defendants argue that their conduct was per se constitutional because they relied on the
professional judgment of doctors to diagnose the Plaintiffs and to prescribe them medications. This
argument ignores the allegation that the Plaintiffs’ medical providers had inaccurate medical records.
Because the Plaintiffs have alleged that the Defendants failed to provide accurate medical records to
their doctors, the Defendants cannot necessarily rely on the professional judgment of the allegedly illinformed doctors.
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The Defendants concede that the allegations the Plaintiffs make “are serious,”
but they contend that the allegations do not rise to the conscience-shocking level.
Defs.’ Mot. 21. The Defendants have not persuaded me that as a matter of law the
Plaintiffs cannot succeed. Rather the Defendants are asking me to assess the merits
of the claim. Defs.’ Mot. 18 (“Complaint Fails on the Merits”). At this stage, the
Plaintiffs need only include allegations that state a plausible claim; they are not
required to win on the merits. The Plaintiffs’ allegations plausibly allege a
substantive due process claim regardless of whether the “shocks the conscience” or
“professional judgment” standard (or both) applies.
Procedural Due Process
The procedural due process analysis is a two-step inquiry. The reviewing court
“first asks whether there exists a liberty or property interest which has been
interfered with by the State.” González-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir.
2010) (quoting Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)). The second
question, then, is “whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Id. (quoting Thompson, 490 U.S. at 460). As a part of
answering that second question, the Court balances three factors to determine what
process is constitutionally due: (1) the private interests at issue, (2) the risk of an
erroneous deprivation of that interest through the procedures used and the probable
value of any additional or substitute procedural safeguards, and (3) the governmental
interests at stake. Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 66 (1st Cir. 2019).
“[T]he quantum and quality of the process due in a particular situation depend upon
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the need to serve the purpose of minimizing the risk of error.” Greenholtz v. Inmates
of Neb. Penal & Corr. Complex, 442 U.S. 1, 13 (1979).
The Defendants argue that the FAC fails to state a viable procedural due
process claim for three reasons. First, they contend that the Plaintiffs allege that they
have been deprived of a protected liberty interest in freedom from unnecessary
administration of psychotropic medications but that they have not alleged that they
have been “administered unnecessary medications.” Defs.’ Mot. 23. Second, the
Defendants contend that the Plaintiffs have failed to allege that any deprivation of
their liberty interests is attributable to them. They point out that it is the medical
professionals, not the Defendants, who are prescribing the medications allegedly in
violation of OCFS policy. Defs.’ Mot. 23–24. Finally, the Defendants argue that even
if the Plaintiffs have alleged a deprivation of liberty attributable to them, the existing
procedures available under state law satisfy due process. Defs.’ Mot. 25.
The Defendants’ first argument misrepresents the FAC, which fairly can be
read to be asserting a liberty interest in “avoiding nonconsensual or unnecessary
administration of psychotropic medications.” Pls.’ Mem. of Law in Opp’n to Defs.’ Mot.
to Dismiss (“Pls.’ Opp’n”) 20 (ECF No. 36). Individuals have a significant liberty
interest in not being forced to take psychotropic drugs regardless of whether a
medical professional thinks that they are necessary.17 Washington v. Harper, 494
In Washington v. Harper, the Supreme Court weighed a prisoner’s right to refuse psychotropic
medications against the State’s interest in prison safety and security. See 494 U.S. 210, 214, 223
(1990). The Court emphasized that the prisoner’s “interest in avoiding the unwarranted
administration of antipsychotic drugs [was] not insubstantial” because “[t]he forcible injection of
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U.S. 210, 221–22 (1990). This, of course, includes foster children.18 See M.B., 2018
WL 327767, at *11; cf. Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 847 (9th
Cir. 2010) (concluding that foster children have a protected liberty interest in a safe
foster care placement). This liberty interest is heightened where psychotropic drugs
are being administered in a manner that is not medically appropriate and not for
purposes of treatment. Cf. Harper, 494 U.S. at 222 n.8, 233.
As to the Defendants’ argument that the Plaintiffs have not alleged that they
have been forced to take unnecessary medication, the Defendants miss the point. The
FAC alleges that children in the foster care system from preschool to high school are
being administered too many psychotropic medications and that they are receiving
improperly high dosages despite adverse side effects and the potential for dangerous
long-term effects. The FAC fairly alleges, therefore, that the Defendants are using
medication into a nonconsenting person’s body represents a substantial interference with that person’s
liberty.” Id. at 229. In a later case, the Court concluded that “forcing antipsychotic drugs on a convicted
prisoner is impermissible absent a finding of overriding justification and a determination of medical
appropriateness.” Riggins v. Nevada, 504 U.S. 127, 135 (1992) (emphasis added). That is, once the
defendant in that case sought to terminate administration of the medication, it was incumbent upon
the state to establish not only the medical appropriateness of the medication, but also an “overriding
justification” for it. See id. In particular, the Riggins Court took issue with the district court’s failure
to make any determination of need or to make any findings as to reasonable alternatives to forced
medication. Id. at 136.
Not only do foster children have greater rights than the prisoners involved in Harper and
Riggins, see Connor B., 771 F. Supp. 2d at 160; Yvonne L., 959 F.2d at 894, but the countervailing
security interest that exists in prisons or mental institutions is not at play in the foster care context.
And while the Supreme Court has not examined the issue of forced administration of psychotropic
drugs in the foster care context, it has concluded that children have “a substantial liberty interest in
not being confined unnecessarily for medical treatment.” Parham v. J.R., 442 U.S. 584, 600 (1979).
Because involuntary confinement for purposes of medical treatment is analogous to the forced
administration of medication, it follows that children have an equally substantial interest in not being
forcibly administered medication.
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excessive psychotropic drugs both across the purported class and as to the named
Further, the Plaintiffs allege that the Defendants have failed to use an
adequate informed consent procedure, that they did not have a say in the
prescriptions they were being given, and that they were not given sufficient
information to provide informed consent. The liberty interest in not being forcibly
administered medication extends to medications about which the Plaintiffs or their
caretakers have been insufficiently informed (i.e., a lack of informed consent). See
M.B., 2018 WL 327767, at *12.
Turning to the Defendants’ second argument—that the deprivation is not
attributable to the Defendants, since the psychotropic medications administered to
the Plaintiffs were prescribed by medical professionals—the Plaintiffs are alleging
widespread systemic failures in informed consent and the absence of secondary
review procedures that have as much to do with the Defendants as the medical
providers actually prescribing the medication. Further, the Plaintiffs allege that
medical providers have not been operating with sufficient information because they
lack up-to-date medical records. This alleged information void is also directly
attributable to the Defendants. “[E]ven if a fully informed physician’s assessment
that a child should be medicated might constitute sufficient process, [such process]
arguably cannot be sufficient” where “a full picture of the child’s medical history and
social profile,” is absent. Id. Finally, I note the fact that a prescription does not take
into account the heightened risk of a caregiver acting against the best interests of the
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child by using medication to make the caregiver’s job easier rather than to address a
genuine medical need.19 Id. In other words, the Defendants’ participation in, and
motivations for, seeking these prescriptions are relevant, too.
As for the Defendants’ last argument—that the existing procedural protections
are constitutionally sufficient—the Defendants rely on OCFS’s policies,20 but,
because the Plaintiffs allege multiple violations of these policies, their adequacy does
not carry the day. See Rodi v. Ventetuolo, 941 F.2d 22, 29 (1st Cir. 1991).
The Supreme Court addressed this conflict in Parham in the course of its examination of
Georgia’s procedure for the involuntary institutionalization of children. The Court noted the potential
“risk of error inherent in the parental decision to have a child institutionalized for mental health care”
and thus determined that a neutral factfinder was required to assess whether the statutory
requirements for admission had been satisfied, and to conduct periodic reviews thereafter. 442 U.S. at
606. That risk is even greater in the foster care context where there is no natural bond of parental
affection and where “the exigencies of accommodating numerous children with limited resources may
incentivize medically unnecessary medication.” M.B., 2018 WL 327767, at *12. Critically, in Parham,
a single medical professional did not have the unbridled discretion whether to commit a child. See id.
(citing Parham, 442 U.S. at 615). And in Harper, the Supreme Court mandated that the person
ultimately making the decision about what medication could be forcibly administered could not be
involved in the inmate’s current diagnosis or treatment. See id. (citing Harper, 494 U.S. at 233).
Neither safeguard appears to be present here. Rather, there is no indication that there is any check
on a doctor’s ability to prescribe any psychotropic medications requested by the Defendants before a
child is forced to take that medication.
OCFS has a policy entitled “Authorization of the Use of Antipsychotic Medications for Youth
in Foster Care” (the “Psychotropic Medication Policy”). OCFS Policy IV.A-C. This policy sets forth
that all youth in foster care “have the right to participate in all service decisions”; to “review their
treatment, case or service plan”; to “refuse any service unless mandated by law or court order”; and to
“be informed about the consequences of refusal or disengagement with services.” Id. at 1. Pursuant to
the policy, antipsychotic medications may be “used only when clinically indicated,” and when they are
used, their side effects must be properly monitored. Id. at 2. Administration of medication to youth
fourteen and over without the consent of the youth is prohibited except in the event of imminent danger
of bodily harm. Id. at 3. When a child moves to a new placement, the caseworker must identify for the
new care provider the medications the child is taking and who the prescribers are. Id. at 4.
The Psychotropic Medication Policy also outlines Maine’s Youth Bill of Rights, which provides
that foster children have the rights, among other things, to: have an informed choice in the type of
care received, see and understand treatment plans, have a say in treatment decisions, be informed
about medications and medication options, have a voice in decisions about prescription of medications,
not be overmedicated, not be punished for refusal to take medications, be made aware of possible risks
that come from refusing to take medications, and access medical records. Id. at 9.
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The Defendants also point to the judicial oversight by the Maine District Court,
which they characterize as being “[c]ategorically . . . adequate process under the Due
Process [C]lause.” Defs.’ Mot. 25. But post-deprivation procedures such as judicial
oversight may be inadequate if “the state is in a position to provide for predeprivation
process.” San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 479 (1st
Cir. 2012) (en banc) (quoting Hudson v. Palmer, 468 U.S. 517, 534 (1984)). “Whether
the opportunity [for due process] needs to be furnished before the seizure or whether
a post-seizure opportunity is sufficient depends on the circumstances.” Herwins v.
City of Revere, 163 F.3d 15, 18 (1st Cir. 1998). “Where feasible, the opportunity (for
obvious reasons) is expected to be pre-deprivation . . . .” Id. Post-deprivation
opportunity is only sufficient where quick action is required or where the provision of
any meaningful pre-deprivation process is impractical. Id. The Defendants make no
argument that pre-deprivation process is not possible here.
The Plaintiffs have adequately alleged a violation of their procedural due
process rights. Contrary to the Defendants’ claim that the issue is a question of law,
Defs.’ Reply Mem. in Further Supp. of Mot. to Dismiss First Am. Compl. 9 (ECF No.
42), the adequacy of the existing procedural safeguards is at least a mixed question
of law and fact. Issues such as whether there is a substantial interference with a
liberty interest, the risks of erroneous deprivation, and the value of additional or
alternative procedures are fact-based. The Defendants repeatedly invoke Connor B.
in an attempt to shore up their claims, but the Plaintiffs in Connor B. had the benefit
of discovery and actually were allowed to present their entire case during a bench
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trial. See 774 F.3d at 48. At this stage in the proceedings, I take the allegations as
true and draw all inferences in favor of the Plaintiffs, who need only state a plausible
claim, which they have done. The motion to dismiss the procedural due process claim
is therefore denied.
Pursuant to the AACWA, a state is eligible for federal funding for its foster
care system if it meets particular requirements established by Congress. See 42
U.S.C. § 671(a). As relevant here:
In order for a State to be eligible for [such] payments . . . it shall have a
plan approved by the Secretary which—
(16) provides for the development of a case plan . . . for each [foster] child . . .
and provides for a case review system which meets the [statutory
requirements] with respect to each child.
Id. § 671(a)(16).
The statutory requirements for what must comprise a case plan and a case
review system are numerous and lengthy, but I highlight in abbreviated fashion the
components that are most important to my analysis:
(1) The term “case plan” means a written document which . . . includes
at least the following:
(A) A description of the type of home or institution in which a child is to
be placed, including a discussion of the safety and appropriateness of
the placement . . . .
(B) A plan for assuring that the child receives safe and 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
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the child to his own safe 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 . . . .
(C) The health and education records of the child, including the most
recent information available regarding—
(i) the names and addresses of the child’s health and educational
(ii) the child’s grade level performance;
(iii) the child’s school record;
(iv) a record of the child’s immunizations;
(v) the child’s known medical problems;
(vi) the child’s medications; and
(vii) any other relevant health and education information
concerning the child determined to be appropriate by the State
(D) For a child who has attained 14 years of age or over, a written
description of the programs and services which will help such child
prepare for the transition from foster care to a successful adulthood.
(E) In the case of a child with respect to whom the permanency plan is
adoption or placement in another permanent home, documentation of
the steps the agency is taking to find [a suitable placement]. At a
minimum, such documentation shall include child specific recruitment
efforts . . . .
(F) In the case of a child with respect to whom the permanency plan is
placement with a relative . . . a description of—
(i) the steps the agency has taken to determine that it is not
appropriate for the child to be returned home or adopted;
(ii) the reasons for any separation of siblings during placement;
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(iii) the reasons why a permanent placement with a fit and willing
relative . . . is in the child’s best interests;
(G) A plan for ensuring the educational stability of the child while in
foster care, including—
(i) assurances that each placement of the child in foster care takes
into account the appropriateness of the current educational
setting and the proximity to the school in which the child is
enrolled at the time of placement; and
(I) an assurance that the State agency has coordinated with
appropriate local educational agencies . . . to ensure that
the child remains in the school in which the child is
enrolled at the time of each placement; or
(II) if remaining in such school is not in the best interests
of the child, assurances . . . to provide immediate and
appropriate enrollment in a new school, with all of the
educational records of the child provided to the school.
Id. § 675(1).
The case plan for any child in foster care under the responsibility of the State
who has attained 14 years of age shall [also] include—
(1) a document that describes the rights of the child with respect to
education, health, visitation, and court participation, the right to be
provided with the documents specified in section 675(5)(I) of this title in
accordance with that section, and the right to stay safe and avoid
(2) a signed acknowledgment by the child that the child has been
provided a copy of the document and that the rights contained in the
document have been explained to the child in an age-appropriate way.
Id. § 675a(b).
The term “case review system” means a procedure for assuring that—
(A) each child has a case plan designed to achieve placement in a safe
setting that is the least restrictive (most family like) and most
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appropriate setting available and in close proximity to the parents’
home, consistent with the best interest and special needs of the child,
(i) if the child has been placed [somewhere] a substantial distance
from the home of the parents of the child . . . sets forth the reasons
why such placement is in the best interests of the child, and
(ii) if the child has been placed in foster care outside the State in
which the home of the parents of the child is located, requires
that, periodically, but not less frequently than every 6 months, a
caseworker . . . visit such child in such home or institution and
submit a report on such visit . . . ,
(B) the status of each child is reviewed periodically but no less frequently
than once every six months by either a court or by administrative review
. . . in order to determine the safety of the child, 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
and safely maintained in the home or placed for adoption or legal
guardianship, and, for a child for whom another planned permanent
living arrangement has been determined as the permanency plan, the
steps the State agency is taking to ensure the child’s foster family home
or child care institution is following the reasonable and prudent parent
standard and to ascertain whether the child has regular, ongoing
opportunities to engage in age or developmentally appropriate activities
(D) a child’s health and education record . . . is reviewed and updated,
and a copy of the record is supplied to the foster parent or foster care
provider with whom the child is placed . . . ; [and]
(I) each child in foster care under the responsibility of the State who has
attained 14 years of age receives without cost a copy of any consumer
report . . . pertaining to the child each year until the child is discharged
from care, receives assistance . . . in interpreting and resolving any
inaccuracies in the report, and, if the child is leaving foster care . . . is
not discharged from care without being provided with . . . an official or
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certified copy of the United States birth certificate of the child, a social
security card issued by the Commissioner of Social Security, health
insurance information, a copy of the child’s medical records, and a
driver’s license or identification card issued by a State . . . and any
official documentation necessary to prove that the child was previously
in foster care.
Id. § 675(5).
Section 622 then provides that in order to be eligible for funding, “a State must
have a plan for child welfare services” that meets a number of requirements,
including that the plan “provides assurances that the State . . . is operating, to the
satisfaction of the Secretary . . . a case review system . . . for each child” in foster care.
Id. § 622(a), (b)(8)(A)(ii).
Private Causes of Action
Legislation enacted pursuant to Congress’s spending power typically does not
allow for a private cause of action in the event of noncompliance. Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981). Rather, the appropriate remedy is
for the federal government to terminate the funds to the state violating the statute.
Id. However, if the statute does provide for an enforceable right, a plaintiff can sue to
enforce that right pursuant to § 1983. Id.
Assessing whether a statute may be enforceable under § 1983 begins with the
question of whether Congress intended for that statute to create an individual right.
See Colón-Marrero v. Vélez, 813 F.3d 1, 15 (1st Cir. 2016). Congress’s intention to
create an individual right is apparent if three conditions are met. Blessing v.
Freestone, 520 U.S. 329, 340–41 (1997); Colón-Marrero, 813 F.3d at 17. “First,
Congress must have intended that the provision in question benefit the plaintiff.”
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Colón-Marrero, 813 F.3d at 17 (quoting Blessing, 520 U.S. at 340). This “requires
more than a showing that the plaintiff is an intended beneficiary of the statute or
‘within the general zone of interest that the statute is intended to protect.’ ” Id.
(quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)). “Rather, ‘the plaintiff must
demonstrate that the federal statute creates an individually enforceable right in the
class of beneficiaries to which he belongs.’ ” Id. (quoting City of Rancho Palos Verdes
v. Abrams, 544 U.S. 113, 120 (2005)). Even where language merely “directs state
officials in the implementation of statutory objectives,” such language can “still create
an enforceable right where it ‘mentions a specific, discrete beneficiary group within
the statutory text’ and ‘speaks in individualistic terms, rather than at the aggregate
level of institutional policy or practice.’ ” Id. at 17–18 (quoting Rio Grande, 397 F.3d
“Second, the plaintiff must demonstrate that the right assertedly protected by
the statute is not so vague and amorphous that its enforcement would strain judicial
competence.” Id. at 17 (quoting Blessing, 520 U.S. at 340–41). “[S]pecificity” can help
to “shield[ ] against potentially disparate outcomes, bolstering the conclusion that the
language is rights-creating.” Id. at 20.
“Third, the statute must unambiguously impose a binding obligation on the
States.” Id. at 17 (quoting Blessing, 520 U.S. at 341). “In other words, the provision
giving rise to the asserted right must be couched in mandatory, rather than precatory,
terms.” Id. (quoting Blessing, 520 U.S. at 341).
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If a plaintiff “demonstrates that Congress intended to confer an individual
right, the right is presumptively enforceable by § 1983.” Id. at 16. To rebut that
presumption, it is incumbent upon the defendant to “show that Congress ‘shut the
door to private enforcement either expressly’ in the statute creating the right, ‘or
impliedly, by creating a comprehensive enforcement scheme that is incompatible with
individual enforcement under § 1983.’ ” Id. (quoting Alexander v. Sandoval, 532 U.S.
275, 284 n.4 (2001)). The burden to overcome the presumption of enforceability is a
“difficult” one. Blessing, 520 U.S. at 346.
Evaluating whether a statute provides for a private cause of action requires
the plaintiff “to identify with particularity the rights” claimed, rather than looking at
the statute “as an undifferentiated whole.” Id. at 342. Thus, this framework must
separately be applied to each identified right in a statute. See id.
Private Causes of Action in the AACWA Context
The Plaintiffs’ AACWA claim partially relies on the notion that 42 U.S.C.
§ 671(a)(16)—the AACWA’s case plan requirement—creates a private cause of action.
Close to forty years ago, the First Circuit examined this exact question. See Lynch v.
Dukakis, 719 F.2d 504, 506 (1st Cir. 1983). In doing so, the First Circuit noted the
Supreme Court’s repeated conclusion (prior to 1983) that rights under various
provisions of the Social Security Act (“SSA”) are enforceable and that remedies under
the SSA are exclusive only when the SSA expresses such an intent. Id. at 510. The
court also rejected the defendants’ arguments that a private cause of action would
weaken the enforcement discretion of the Secretary of the U.S. Department of Health
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and Human Services (the “Secretary”) or that the Secretary’s ability to withhold
funding precluded a private cause of action. Id. at 511. Ultimately, the court
concluded that a private cause of action could be brought pursuant to § 1983 to enforce
the case plan requirement in § 671(a)(16). Id. at 512; see Suter v. Artist M., 503 U.S.
347, 354 n.5 (1992) (noting—but not opining on—Lynch’s holding).
But Lynch is not dispositive because the governing law, both in the context of
private causes of action in general and in the context of private causes of action under
the AACWA specifically, has changed.21 Notably, a decade after Lynch, the Supreme
Court analyzed a neighboring provision of the AACWA, § 671(a)(15). That provision
requires states to “have a plan approved by the [federal government] which . . .
The Plaintiffs contend that Lynch settles the issue as to whether the case plan and case review
requirements are privately enforceable. Pls.’ Opp’n 26–27. I disagree, but not for the same reasons as
the Defendants. The Defendants contend that Lynch analyzed other case plan requirements than the
one at issue here and contend that “other case plan requirements in the [Adoption Assistance and
Child Welfare Act (“AACWA”)] remain subject to evaluation.” Defs.’ Reply 11.
I recognize that Blessing requires that statutes be analyzed piece by piece rather than being
examined “as an undifferentiated whole.” Blessing v. Freestone, 520 U.S. 329, 342 (1997). But I do not
understand this to mean that each case plan or case review system requirement must be analyzed
independently to establish whether it can support a private cause of action. This is because each of
these components comprises the definition of “case plan” and “case review system.” It does not make
sense to subdivide these definitions because, by definition, if any component is lacking, it is not a “case
plan” or a “case review system,” since each term is defined by the entirety of its parts. In my view, then,
the question is whether a private cause of action can be brought based on the idea that a state’s case
plan (in general) or case review system (in general) is deficient because it is lacking in some way. In
other words, the question is whether the case plan and case review system requirements are privately
enforceable, not whether it is privately enforceable to have each component of a case plan or case
review system. As the Defendants emphasize, § 671 is merely definitional. It is § 675(a) that does or
does not establish the right, and § 671 only serves to flesh out what some of the words in § 675(a)
Having said this, I do not view Lynch as dispositive. While it has not been overruled, and its
holding might remain good law, the analysis in Lynch is outdated. It appears to skip the first part of
the so-called Blessing/Gonzaga framework (i.e., the modern approach to evaluating the existence of a
private right of action) and jumps right to asking whether Congress intended to foreclose a § 1983
remedy before examining whether Congress intended to create a federal right. See Lynch v. Dukakis,
719 F.2d 504, 512 (1st Cir. 1983) (“[N]othing in the language or structure of Title IV-E suggests that
Congress meant section 671(b) to be an exclusive remedy . . . .”). I thus question the continuing vitality
of Lynch and do not think its holding can be extrapolated to new fact patterns like the one at issue
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provides that, in each case, reasonable efforts will be made (A) prior to the placement
of a child in foster care, to prevent or eliminate the need for removal of the child from
his home, and (B) to make it possible for the child to return to his home.” Suter, 503
U.S. at 351 (quoting 42 U.S.C. § 671(a)(15)). The Suter plaintiffs brought a class
action alleging that the Illinois Department of Children and Family Services
(“DCFS”) failed to promptly assign caseworkers to children placed in DCFS custody
and that DCFS thereby failed to make reasonable efforts to prevent removal and to
facilitate reunification of families, in violation of § 671(a)(15). Id. at 352.
The Court recognized that § 671(a)(15) was mandatory by its terms but found
that the statute only mandated the states to have a plan containing the listed features
approved by the federal government. Id. at 358. That is, the Court found that
§ 671(a)(15) only guaranteed the existence of the plan, not the implementation of the
plan. See id. at 358–59. This is in contrast to the Supreme Court’s prior rejection of
this same line of reasoning in another case just two years earlier in which the Court
had taken a broader approach in analyzing the existence of a private right of action.
See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 513–14 (1990).22
In that case, Wilder v. Virginia Hospital Association, the Supreme Court analyzed whether a
healthcare provider could sue pursuant to § 1983 to challenge the reimbursement method of a state
(in that case, Virginia) under the Medicaid Act. 496 U.S. 498, 501 (1990). The Medicaid Act required
states to submit a “plan for medical assistance” to be approved by the Secretary of the U.S. Department
of Health and Human Services (the “Secretary”). Id. at 502 (quoting 42 U.S.C. § 1396a(a)). And that
plan was required to provide payments that “the State finds, and makes assurances satisfactory to the
Secretary, are reasonable and adequate to meet the costs” of a facility’s provision of care. Id. at 502–
03 (quoting 42 U.S.C. § 1396a(a)(13)(A)) (emphasis deleted). Virginia tried to argue that the statute’s
requirements were mere procedural requirements and that it was not required to adopt rates that
were actually found to be reasonable and adequate but that the statute only required states to satisfy
themselves that their rates were “reasonable and adequate and to make assurances to that effect to
the Secretary.” Id. at 512–13. The Court rejected that argument, finding that that “would render the
statutory requirements of findings and assurances, and thus the entire reimbursement provision,
essentially meaningless.” Id. at 514. And the Court ultimately held—adopting a similar framework to
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The Suter court also concluded that the AACWA gave the states broad
discretion in deciding how to comply with the directive in § 671(a)(15). See 503 U.S.
at 360. And the Court concluded that the statute lacked sufficient “guidance . . . as to
how ‘reasonable efforts’ [were] to be measured.” Id. Rather than a private cause of
action, the Court concluded that the remedy for a violation of § 671(a)(15) was for the
Secretary to reduce or eliminate payments if he/she were to find that a state’s plan
failed to comply with the statute or that a state failed to comply with its established
This decision was met with backlash. Congress was concerned that
“beneficiaries of the State plan titles of the” SSA—meaning those aspects of the SSA
requiring states to develop specific plans to implement federal programs, such as the
AACWA —would not be able to sue to ensure that these plans complied with the SSA.
H.R. Rep. No. 102-631, at 365 (1992). Congress was also concerned that Suter would
affect not just the enforceability of the AACWA, but also the ability of beneficiaries
of all federal programs with state plan requirements (e.g., Medicaid, Unemployment,
etc.) to sue to enforce state violations of those federal programs. Id. And Congress
also noted that the Supreme Court’s pre-Suter case law “recognized, in a substantial
number of decisions” (such as Wilder) “that beneficiaries of Federal-State programs
could seek to enjoin State violations of Federal statu[t]es by suing under 42 U.S.C.
§ 1983.” Id. at 364.
that of Blessing and Gonzaga—that healthcare providers could use a private right of action to sue to
enforce the outlined reimbursement requirements. See id.
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Based on those concerns, Congress swiftly responded with legislation
colloquially known as the “Suter fix.” Connor B., 771 F. Supp. 2d at 168 n.9. That
In an action brought to enforce a provision of this chapter, such provision
is not to be deemed unenforceable because of its inclusion in a section of
this chapter requiring a State plan or specifying the required contents
of a State plan. This section is not intended to limit or expand the
grounds for determining the availability of private actions to enforce
State plan requirements other than by overturning any such grounds
applied in Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in
prior Supreme Court decisions respecting such enforceability; provided,
however, that this section is not intended to alter the holding in Suter
v. Artist M. that section 671(a)(15) of this title is not enforceable in a
private right of action.
42 U.S.C. § 1320a-2.
In enacting the Suter fix, Congress sought to turn back the clock, “to restore to
an aggrieved party the right to enforce . . . the Federal mandates of the State plan
titles of the” SSA as it existed prior to Suter (i.e., in Wilder). H.R. Rep. No. 102-631,
at 365. In other words, Congress sought to “preserve[ ] private rights of action as they
existed before” Suter and “to assure that individuals who have been injured by a
state’s failure to comply with . . . state plan requirements [would be] able to seek
redress in the federal courts to the extent they were able to prior to” Suter. Id. at 366.
Congress did not, however, seek to overturn the specific holding of Suter that
§ 671(a)(15) was too vague to be judicially enforceable. Id. Rather, Congress only
sought to alter the aspect of Suter “suggesting that failure of a state to comply with a
state plan provision is not litigable as a violation of federal statutory rights.” Id.
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“[A]lthough Congress did not overrule Suter . . . it made clear that the inclusion
of a requirement as part of a state plan was not sufficient to render that requirement
unenforceable by private action.” L.J. v. Wilbon, 633 F.3d 297, 309 (4th Cir. 2011);
accord Charlie H. v. Whitman, 83 F. Supp. 2d 476, 484 (D.N.J. 2000). Courts have
thus interpreted the Suter fix to overrule the “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.” Sam M., 800 F. Supp. 2d at 386 (internal quotation
marks omitted); see also Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543,
559–60 (S.D. Miss. 2004).
The Plaintiffs argue that two provisions of the AACWA can support a private
cause of action: §§ 671(1)(a)(16) and 622(b)(8)(A)(ii). Pls.’ Opp’n 25–26. The
Defendants dispute this and also argue that even if these private causes of action are
viable, the Plaintiffs’ AACWA claim fails on the merits. I begin with the question of
whether these provisions provide for a private cause of action.
Private Cause of Action
Intent to Benefit
Section 671(a)(16) requires states to include in their foster care plans
provisions for the development of a “case plan . . . for each [foster] child” and for a
“case review system . . . with respect to each . . . child.” From this language alone it
is apparent that the “case plan” and “case review system” requirements are intended
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to benefit “each child” (i.e., individual foster children). Sam M., 800 F. Supp. 2d at
387–88; Connor B., 771 F. Supp. 2d at 171; Kenny A., 218 F.R.D. at 292. This
congressional intent to benefit foster children is made more apparent by looking
through these terms of art to their statutory definitions.
The statutory requirements for what comprise a “case plan” contain no fewer
than eight components that are focused directly on, and clearly intended to benefit,
individual foster children.23 The description of the “case review system” is similarly
child-focused, as at least four components of that system are focused directly on, and
clearly intended to benefit, individual foster children.24 The required components of
the case plan and the case review system speak in individualized terms rather than
See 42 U.S.C. § 675(1)(A) (“a discussion of the safety and appropriateness” of the child’s
placement), (B) (“[a] plan for assuring that the child receives safe and proper care and that services
are provided to . . . address the needs of the child while in foster care”), (C) (inclusion of all “relevant
health and education information concerning the child”), (D) (for children over fourteen, description of
programs and services that will help them prepare for transition to adulthood), (E) (documentation of
steps agency is taking to find a suitable placement for the child, including “child specific recruitment
efforts”), (F) (for children placed with a relative, explanations for why child should not be returned
home or adopted, why the child is separated from any siblings, and why the placement “is in the child’s
best interests”), (G) (“[a] plan for ensuring the educational stability of the child,” including
consideration of the proximity of the child’s placement to the child’s current school, and a requirement
that school placement must be “in the best interests of the child”); id. § 675a(b)(1) (for children over
fourteen, case plan must describe the child’s rights, including “the right to stay safe and avoid
exploitation”), (2) (children over fourteen must sign an acknowledgment they have been given
documentation reflecting these rights and have had them explained “in an age-appropriate way”).
See 42 U.S.C. § 675(5)(A) (placement must be “in a safe setting that is the least restrictive
(most family like) and most appropriate setting available and in close proximity to the parents’ home,
consistent with the best interest and special needs of the child,” and more distant placements must be
“in the best interests of the child,” while out-of-state placements require a caseworker to visit the child
periodically and to submit a report), (B) (“status of the child” must be reviewed at least every six
months to evaluate “safety of the child,” appropriateness of the placement, and “whether the child has
regular, ongoing opportunities to engage in age or developmentally appropriate activities”),
(D) (“child’s health and education record” must be “reviewed and updated” and “supplied to” the child’s
custodian), (I) (children over fourteen must receive copies of reports and assistance in interpreting and
resolving inaccuracies, while children leaving foster care must receive particular
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in terms of institutional policy or practice as a whole. It is apparent from the language
used that the statute is primarily concerned with the interests of the individual
children in foster care. M.B., 2018 WL 327767, at *15; Elisa W. ex rel. Barricelli v.
City of New York, No. 15 CV 5273-LTS-HBP, 2016 WL 4750178, at *5 (S.D.N.Y. Sept.
12, 2016); Kenny A., 218 F.R.D. at 292; Brian A. ex rel. Brooks v. Sundquist, 149 F.
Supp. 2d 941, 947 (M.D. Tenn. 2000); cf. Colón-Marrero, 813 F.3d at 19 (noting that
“no gap exists between the operative text . . . and the persons whose interests are at
stake” where “[t]he statutory proscription . . . directly and explicitly protects
The Defendants provide four arguments as to why they believe § 671(a)(16)
does not satisfy the “intent to benefit” prong of the test. Defs.’ Mot. 30–31. First, the
Defendants contend that the statute is “not unambiguously structured to benefit
individual claimants” since it “is enforced by the Secretary.” Defs.’ Mot. 30. This
misunderstands the structure of the statute. While the plan must be approved by the
Secretary, the focus of § 671(a)(16) is on ensuring that the plan contains each of the
listed components. The two components at issue—the case plan and case review
system—have numerous sub-components clearly intended to benefit individual foster
The Defendants implicitly acknowledge that at least part of the AACWA’s case review system
is intended to benefit individual foster children. They note how, under Maine law, the Maine District
Court must review foster children’s cases at least every six months. Defs.’ Mot 2, 11, 17, 25. And they
highlight this as a child-protective aspect of Maine’s foster care system. See Defs.’ Mot. 17–18
(explaining that guardians ad litem can raise issues with child’s care with Maine District Court at
least every six months), 25 (“In instances where these [procedural] safeguards fail, the child and/or
[guardian ad litem] can bring their concerns to the Maine District Court overseeing their child
protective case . . . even outside the regular six-month review period.”). The requirement that reviews
be held at least every six months is mandated by the AACWA. See 42 U.S.C. § 675(5)(B). It cannot be
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The Defendants’ interpretation mostly ignores § 675(1) and (5), focusing
exclusively on § 671(a)(16). But “case plan” and “case review system,” as used in
§ 671(a)(16), are defined phrases, and those defined phrases are devoid of meaning
without looking at their definitions in § 675(1) and (5). Because these are defined
phrases, every time those phrases appear in the statute, their definitions must be
plugged into their place. See King v. Burwell, 576 U.S. 473, 489 (2015); cf. Tanzin v.
Tanvir, 141 S. Ct. 486, 490 (2020) (noting that a statutory definition controls over the
plain meaning of a word). When the child-focused language is imported into
§ 671(a)(16), it is plainly structured to benefit the children in foster care.
Second, the Defendants insist that § 671(a)(16) has an “aggregate focus.” Defs.’
Mot. 30–31. This is belied by the requirements that the case plan must be developed
“for each child” and that the case review system meet the requirements for “each such
child.” See Connor B., 771 F. Supp. 2d at 171 (“The fact that these provisions are
‘embedded within the requirements for a state plan’ does not transform them into an
institutional policy.” (quoting Rio Grande, 397 F.3d at 74)).
The Defendants cite 31 Foster Children for the proposition that § 671(a)(16)
has an aggregate focus. Defs.’ Mot. 31. But 31 Foster Children is of little precedential
value. The plaintiffs in 31 Foster Children brought suit specifically to enforce two
particular provisions of § 675(5) (not § 671)—that is, some of the requirements for a
case review system. 329 F.3d at 1270. And the Eleventh Circuit found that because
the case that both the State’s case review system provides adequate protections for foster children and
that the AACWA’s requirement for this case review system is not sufficiently focused on benefitting
individual foster children.
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those aspects of the statute were “definitional in nature, they alone cannot and do not
supply a basis for conferring rights enforceable under § 1983.” Id. at 1271. The 31
Foster Children court thus looked to § 671(a)(16) because it is the only other part of
that portion of the AACWA that uses the term “case review system.” Id. But the court
found it significant that § 671(a)(16) did not “explicitly require a plan to meet the
requirements” of the particular provisions of § 675(5) that the plaintiffs sought to
enforce. Id. That is, while § 671(a)(16) required that a case review system meet other
requirements specified in the statute, it did not require a case review system to meet
the requirements that the plaintiffs sought to enforce. Id. The court thus found it
significant that Congress required compliance with some aspects of the case review
system but not others. Id. at 1272.
That statutory mismatch no longer exists because § 671(a)(16) has specifically
included a reference to § 675(5) in its entirety since 2014. See M.B., 2018 WL 327767,
at *15 n.8. The 31 Foster Children analysis is thus inapt. See Kenny A., 218 F.R.D. at
292 (noting that 31 Foster Children—which was binding precedent—did not control
because it only held that § 675(5)(D) and (E) together with § 671(a)(16) did not alone
create privately enforceable rights).
The 31 Foster Children analysis also contravenes the Suter fix. The Eleventh
Circuit noted the references to individual children and their placements in § 675(5)
but reasoned that because these references are only “made in the context of describing
what the procedure is supposed to ensure,” they “cannot make out the requisite
congressional intent to confer individual rights enforceable by § 1983.” 31 Foster
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Children, 329 F.3d at 1272 (quoting Gonzaga, 536 U.S. at 289). That sounds like a
conclusion that inclusion of these references as requirements as part of a state plan
necessarily means that there is no enforceable private right. But that is exactly the
reasoning that the Suter fix disavowed. See Connor B., 771 F. Supp. 2d at 168 & n.9.
Third, the Defendants argue that the language of § 671(a)(16) “stands in stark
contrast” to the language of other statutes that do provide for private causes of action,
such as Title IX. Defs.’ Mot. 31. I am not persuaded that there is a meaningful
difference between the “No person . . . shall” language in Title IX26 and the
requirement that a state “shall have a plan approved by the Secretary which . . .
provides for the development of a case plan . . . for each child . . . and provides for a
case review system . . . with respect to each such child.” In my view, the inclusion of
the requirement that the plan be approved by the Secretary does not vitiate the
statute’s focus that a case plan and case review system must be established for “each
child.” And that “each child” language is just as individualized as the language in
Fourth, the Defendants point to § 674(d)(3)(A) as evidence that Congress did
not intend to establish a private cause of action. Section 674(d)(3)(A) specifically
creates a private cause of action by allowing “[a]ny individual who is aggrieved by a
Title IX says: “No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance,” except in certain circumstances. 20 U.S.C.
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violation of” § 671(a)(18) to sue. 42 U.S.C. § 674(d)(3)(A). Section 671(a)(18),
meanwhile, requires a state plan to:
provide[ ] that neither the State nor any other entity in the State that receives
funds from the Federal Government and is involved in adoption or foster care
(A) deny to any person the opportunity to become an adoptive or a foster
parent, on the basis of the race, color, or national origin of the person, or
of the child, involved; or
(B) delay or deny the placement of a child for adoption or into foster care,
on the basis of the race, color, or national origin of the adoptive or foster
parent, or the child, involved . . . .
Id. § 671(a)(18). That § 674(d)(3)(A) creates a private cause of action for a violation of
§ 671(a)(18) is obvious. And some courts have concluded that Congress’s decision to
add this provision explicitly allowing a lawsuit for a violation of § 671(a)(18) but not
for any other parts of § 671 “is strong evidence that Congress did not intend” the other
parts of § 671(a) to allow for a private cause of action. See, e.g., Charlie H., 83 F. Supp.
2d at 489; Ashley W. ex rel. Durnell v. Holcomb, 467 F. Supp. 3d 644, 659 (S.D. Ind.
2020) (citing Charlie H.).
I am not as persuaded. To begin with, it is difficult to read too much into
Congress’s failure to do something, especially when there is no authoritative evidence
explaining such a failure to act. For example, it may be the case that some legislators
thought it unnecessary to spell out that a private cause of action existed for other
aspects of § 671 because they already interpreted the statute to allow it. See Bostock
v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020) (“Maybe some in the later legislatures
understood the impact [the statute’s] broad language already promised for cases like
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ours and didn’t think a revision needed.”). In short, “speculation about why a later
Congress” failed to legislate in a particular manner “offers a particularly dangerous
basis on which to rest an interpretation of an existing law a different and earlier
Congress did adopt.” Id. (internal quotation marks omitted).
The argument that § 674(d)(3)(A) is the only permissible private cause of action
under the AACWA also proves too much. Congress made clear in enacting the Suter
fix that, outside of § 671(a)(15), it expected that some parts of the AACWA allowed for
private rights of action. To say that they do not contravenes Congress’s clear intent
in enacting the Suter fix.
There is also a logical explanation for why § 674(d)(3)(A) is different from the
rest of the AACWA. Section 671(a)(18) is uniquely situated among the other
provisions of § 671(a) in that it embodies an antidiscrimination value that is
omnipresent in the United States Code. It transcends the foster care system. The
other aspects of § 671(a), on the other hand, are particular to the foster care context.
It thus makes sense that Congress would want to provide an explicit private cause of
action for victims of discrimination as it does in other statutes (like in Title IX). Given
how distinct § 671(a)(18) is from the rest of the statute, the inclusion of § 674(d)(3)(A)
is not significant evidence of a congressional intent on the broader issue of whether
§ 671(a)(16) allows for a private cause of action.
Judicially discernible language
The case plan and case review system requirements are not so vague and
amorphous as to strain judicial competence. Elisa W., 2016 WL 4750178, at *5; Sam
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M., 800 F. Supp. 2d at 388; Kenny A., 218 F.R.D. at 292; Brian A., 149 F. Supp. 2d at
947. Each has multiple, highly specific components that are easy enough for a court
to assess. Sam M., 800 F. Supp. 2d at 388; see Brian A., 149 F. Supp. 2d at 947 (“These
provisions [of the AACWA] are extraordinarily specific, spelling out exactly what a
state must do for children in its care in order to receive funding under the Act.”). For
example, it is no particular challenge for a court to review a case plan to determine
whether it contains a description of the child’s placement, a plan for the child’s safe
and proper care, the child’s health and education records, or a plan for ensuring the
educational stability of the child. 42 U.S.C. § 675(1)(A), (B), (C), (G). Nor is it
unusually difficult for a court to assess a case review system to determine whether it
has a plan designed to achieve a placement that is in the best interests of the child, a
procedure to evaluate the child’s status every six months (including assessing specific
aspects of the child’s placement), or whether the child’s health and education record
is reviewed and updated. See id. § 675(5)(A), (B), (D).
Some of these provisions are nonspecific, to be sure, and there is a lot of room
for states to have flexibility in crafting case plans and case review systems. But the
difficulty comes on the front end—in terms of a state crafting such a plan and
system—not on the back end, in terms of evaluating what the state has developed.
For example, it may be difficult for a state to figure out how to develop a procedure
for assuring that “each child has a case plan designed to achieve placement in a
setting . . . consistent with the best interest and special needs of the child.” See id.
§ 675(5)(A). But this “best interests of the child” benchmark is a familiar judicial
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standard that the Maine state courts are often called on to apply in family court
proceedings. See Costigan v. Costigan, 418 A.2d 1144, 1146 (Me. 1980) (“The
paramount concern of the court in any proceeding concerning child custody is to act
in the best interest of the child.”). It may not be an easy standard, but it is a judicially
administrable one. See id. (“In determining [who] will provide for a child’s best
interests, the court should consider all factors having reasonable bearing on the
physical and psychological well-being of the child.”).
Mandatory rather than precatory language
Section 671(a)(16) expresses a clear mandate through the use of the term
“shall.” Sam M., 800 F. Supp. 2d at 388; Connor B., 771 F. Supp. 2d at 171. The
statute is couched in mandatory terms and is unmistakably focused on the benefitted
class. Elisa W., 2016 WL 4750178, at *5; Sam M., 800 F. Supp. 2d at 387–88; Connor
B., 771 F. Supp. 2d at 171; Brian A., 149 F. Supp. 2d at 947. The statute clearly
imposes a binding obligation on the states. Kenny A., 218 F.R.D. at 292. The
Defendants do not dispute this.
Whether Congress shut the door to private
The Defendants have not argued here that Congress has expressly or impliedly
attempted to overcome any presumption of enforceability, and there is no indication
that it has. For example, AACWA has no private enforcement mechanism. Sam M.,
800 F. Supp. 2d at 388; Kenny A., 218 F.R.D. at 292; Connor B., 771 F. Supp. 2d at
171–72. And the Suter fix plainly left the door to private enforcement open.
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Unlike with § 671, the language of § 622 is not focused on the intended
beneficiary (the foster children) but rather is focused on the Secretary. The only
reference to the Secretary in § 671 is requiring that the plan be approved by the
Secretary, but otherwise, § 671 requires a case plan and case review system meeting
the specified requirements, most of which are directly intended to benefit foster
children. The role of the Secretary in § 671 appears purely ministerial. That is, while
§ 671 notes that a state’s case plan and case review system must be approved by the
Secretary, the focus of § 671 is on ensuring that the case plan and case review system
are comprised of the individual components designed to benefit foster children.27
Section 622, on the other hand, is focused on ensuring that the case review
system is being implemented in a manner that is “to the satisfaction of the Secretary.”
So, while § 671 is focused on ensuring that the case review system contains the
particular components intended to benefit foster children, § 622 is focused on
ensuring that the case review system is operating to the satisfaction of the Secretary.
This belt and suspenders approach exists presumably to ensure that a state’s case
review system is operating in the way Congress intended, both to ensure foster
children are being helped (§ 671) and to ensure that the Secretary is satisfied of the
The grammar of § 671(a) supports this reading as well. The statute says that states “shall have
a plan approved by the Secretary which” provides for various requirements. That is, § 671(a) does not
require that the Secretary approve a plan, but rather it requires that a plan has been approved by the
Secretary. If there were a comma after “Secretary,” it would support the reading that the “shall”
mandates the plan approval. Because of the lack of a comma, the sentence implies that the plan must
have been approved by the Secretary at some point but that the “shall” is directed at mandating the
listed requirements, rather than the plan approval.
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same (§ 622). But only § 671 is focused directly on the benefit to foster children, and
only § 671 can support a private cause of action. The Defendants’ motion is thus
GRANTED with respect to the Plaintiffs’ AACWA claim premised on a violation of
Merits of the Claim
The Defendants contend that even if a private cause of action can be brought
pursuant to the AACWA, “DHHS policy plainly meets the dictates of the AACWA.”
Defs.’ Mot. 32. OCFS has a policy governing the management of health records for
youth in foster care. OCFS Policy V.I-2. An OCFS caseworker “is responsible for
gathering [a youth’s] health and health care information and providing it directly to
the foster parent or other child care provider at the time of the child’s placement.” Id.
at 1. The child’s caseworker is then responsible for updating this health record. Id.
Similarly, the child’s caseworker is responsible for updating the child’s portable
health record, either by providing an updated “sheet” to the caretaker or by asking
the foster parent or caretaker to make the necessary changes on the existing sheet.
Id. at 4. Whenever a child’s placement changes, the portable health record is returned
to an OCFS caseworker, who reviews the record and adds any information not already
recorded in it. Id. at 6. “While the child is in [OCFS] care or custody, the child’s
caseworker is responsible for adding medical information to the child’s case record in
order that the case record contain that included in the portable health record.” Id.
These updates must occur at the time of each child’s placement, or at least every six
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While this policy does exist, the Defendants ignore the Plaintiffs’ allegations
that the Defendants have violated their own policies.28 The Defendants also nitpick
the Plaintiffs’ allegations regarding their medical records and portray them as failing
to allege any violation of federal law. Defs.’ Mot. 33–34. That is not so. Every plaintiff
except Trent W. has alleged that the Defendants have not maintained updated
medical records or provided those updated medical records to the Plaintiffs’
caregivers, in violation of the AACWA. FAC ¶¶ 23, 30–34 (Bryan), 53 (Henry), 98–99
(Grayson), 124 (Kendall), 148–49 (Neville). To the extent that the Defendants allege
that these allegations are unclear or conclusory, I disagree. They meet the low bar to
survive a motion to dismiss.
For the reasons stated above, the Court DENIES the Defendants’ motion to
dismiss, except the Court GRANTS the Defendants’ motion to dismiss the aspect of
the Plaintiffs’ AACWA claim relying on 42 U.S.C. § 622(b)(8)(A)(ii). Although Trent
W.’s allegations are currently insufficient to support his claims, the Court sua sponte
The Defendants do not specifically argue that to the extent that the AACWA allows for a
private cause of action, it only allows a plaintiff to require that a case plan be developed, not that a
case plan be implemented. Courts have reached differing conclusions on whether the AACWA private
cause of action extends to the implementation of the plan. Compare Brian A., 149 F. Supp. 2d at 947
(“[T]he enforceable rights in question are not merely procedural rights that the state's plan make the
relevant provisions. Rather, the rights that are enforceable include the substantive right that the state
actually act in accordance with its plan; it must implement that which it assures.” (quoting Wood v.
Tompkins, 33 F.3d 600, 608 n.16 (6th Cir. 1994)), with Elisa W. ex rel. Barricelli v. City of New York,
No. 15 CV 5273-LTS-HBP, 2016 WL 4750178, at *6 (S.D.N.Y. Sept. 12, 2016) (“While it is of course to
be expected that a plan will be implemented, nothing in the statutory language specifically requires
implementation or achievement of all of the particulars of the plan, much less successful achievement
of outcomes. Rather, the plan principally serves notice and accountability functions in aid of reviews
of goals, services and outcomes.”). However, it is a more faithful application of the law, particularly in
light of the Suter fix, to say that the cause of action also extends to the implementation of the plan.
See Wilder, 496 U.S. at 513–14.
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GRANTS Trent W. leave to amend his claims. Trent W. has fourteen days from the
date of this order to file an Amended Complaint. Should Trent W. fail to timely file
an Amended Complaint, Trent W.’s claims shall be DISMISSED.
/s/ Nancy Torresen
United States District Judge
Dated this 4th day of October, 2021.
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