T.F. et al v. Hennepin County et al

Filing 74

ORDER granting in part and denying in part 49 Motion to Dismiss/General; granting in part and denying in part 55 Motion to Dismiss/General. Plaintiffs Third Cause of Action is DISMISSED with prejudice; Plaintiffs Second and Fourth Causes of Action are DISMISSED without prejudice.(Written Opinion.) Signed by Judge Paul A. Magnuson on 2/16/2018. (ALT)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
T.F., by his next friend Tracy Keller; K.D.,
by his next friend Laura Ferenci; C.O, by
her next friend Laura Ferenci; L.L, by his
next friend Gerald Kegler; T.T., by their
next friend Dr. Caryn Zembrosky; M.T., by
their next friend Dr. Caryn Zembrosky;
T.M., by their next friend James Dorsey;
T.E., by their next friend James Dorsey;
A.T., by their next friend James Dorsey;
A.W., by his next friend Margaret
Shulman; I.W., by their next friend Gloria
Anderson; D.W., by their next friend Gloria
Anderson; and B.W., by their next friend
Gloria Anderson; individually and on
behalf of all others similarly situated,

Civ. No. 17-1826 (PAM/BRT)

Plaintiffs,
v.

MEMORANDUM AND ORDER

Hennepin County; Hennepin County
Department of Human Services and Public
Health; David J. Hough, Hennepin County
Administrator; Jennifer DeCubellis,
Hennepin County Deputy Administrator for
Health and Human Services; Jodi
Wentland, Hennepin County Director of
Human Services; Janine Moore, Director,
Hennepin County Child and Family
Services; and Emily Piper, Commissioner,
Minnesota Department of Human Services,
Defendants.

This matter is before the Court on Defendants’ Motions to Dismiss. For the
following reasons, the Motions are granted in part and denied in part.

BACKGROUND
Plaintiffs are thirteen children 1 who are currently or who have been under the care
of Hennepin County’s child-protection system. Many of them have suffered abuse and
neglect at the hands of both their biological and foster families. Plaintiffs allege that
Hennepin County’s child-protection system is not doing all that it should to protect
children in the system, by failing to have a sufficient number of caseworkers to handle
the caseload, failing to investigate or assess reports of alleged abuse or neglect, failing to
conduct complete investigations when it does investigate those reports, and offering
services to families that are inadequate to protect the children in those families. (Am.
Compl. (Docket No. 45) ¶ 6.) Indeed, all parties acknowledge that a 2015 report by
Casey Family Services found serious and systemic problems in Hennepin County’s
system. (Id. ¶¶ 263-66.)
Plaintiffs seek to represent two classes of children: the “special relationship” class,
which consists of all children who are or will be under the protection of the County’s
child-protection system, and the “maltreatment” class, which consists of children who are
or will be the subject of maltreatment reports in Hennepin County. (Id. ¶ 33.) Named as
Defendants are the Commissioner of the Minnesota Department of Human Services,
Hennepin County, Hennepin County’s Department of Human Services and Public Health,
and officials in Hennepin County’s Department of Human Services.
1

Because minors are considered incompetent parties, all Plaintiffs appear through “next
friends.” Defendants challenge the authenticity of some of the “next friends,” but an
inquiry into the status of the relationship between the next friends and the child Plaintiffs
is not appropriate at this early stage of the litigation, nor is it relevant to the issues before
the Court on these Motions.
2

Plaintiffs’ Amended Complaint raises four claims. The first cause of action,
brought under 42 U.S.C. § 1983, contends that Defendants violated Plaintiffs’ substantive
due process rights by maintaining a policy, pattern, practice or custom that amounts to
deliberate indifference to Plaintiffs’ constitutional rights to care and protection from
harm. (Id. ¶ 367.) The second cause of action, also brought under § 1983, contends that
Defendants violated the First, Ninth, and Fourteenth Amendments to the Constitution by
failing to “take all reasonable efforts toward securing a permanent home” for Plaintiffs.
(Id. ¶ 373.) Plaintiffs’ third cause of action claims a violation of the Adoption Assistance
and Child Welfare Act of 1980 (“CWA”), 42 U.S.C. § 670 et seq. (Id. ¶ 376.) The final
cause of action alleges that Hennepin County and the County officials were negligent in
the investigation and intervention of child abuse and neglect, in violation of Minn. Stat.
§ 626.556. (Id. ¶¶ 378-87.) Plaintiffs seek declaratory judgments that Defendants are
violating their rights and the rights of the class members, and ask that the Court appoint a
special master to ensure that the problems with the system are fixed. (Id. at 92-93.)
The Commissioner and the County Defendants have separately moved to dismiss
the claims against them, but the majority of their arguments are the same. They contend
that abstention principles prevent the Court from exercising jurisdiction, that Plaintiffs
rely on a right that does not exist, that Plaintiffs have not pled sufficient facts to support
their substantive due process claims, and that there is no private right of action under the
CWA. The Commissioner also contends that Plaintiffs’ § 1983 claims against her fail
because they rely on supervisory liability, which is not available under § 1983. And the
County Defendants assert that the negligence claim is not well pleaded.
3

DISCUSSION
A.

Common Issues
1.

Abstention

Defendants argue that the Court should abstain from hearing all of Plaintiffs’
claims pursuant to Younger v. Harris, 401 U.S. 37 (1971), or O’Shea v. Littleton, 414
U.S. 488 (1974). Defendants note that Minnesota’s juvenile courts are heavily involved
in all child-protection decisions and exercise ongoing jurisdiction over children in the
foster-care system. Indeed, under Minnesota law, the juvenile courts have “original and
exclusive jurisdiction” over children in foster care. Minn. Stat. § 260C.101, subd. 1.
Minnesota’s juvenile courts are responsible for placing children in the child-protection
system. See id. § 626.556, subd. 10m(b) (providing framework for child-in-need-ofprotection petitions); id. § 260C.202(a) (stating that a court orders placement of children
in foster care). The juvenile courts are also charged with reviewing a child’s foster-care
placement every 90 days. Id. § 260C.202(b). Defendants contend that the juvenile
courts’ involvement in all aspects of the County’s child-protection system counsels
against federal-court interference in that system.
a.

Younger abstention

Younger requires federal courts to decline to hear challenges to pending state
actions involving important state interests. See, e.g., Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) (dismissal appropriate in light of
pending attorney disciplinary proceeding); Moore v. Sims, 442 U.S. 415 (1979)
(dismissal appropriate in light of pending child-custody proceedings).
4

Younger

abstention applies in three circumstances: pending state criminal proceedings, pending
state civil proceedings “that are akin to criminal prosecutions,” or “civil proceedings
involving certain orders that are uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588
(2013) (citing New Orleans Pub. Serv., Inc., v. Council of City of New Orleans
(“NOPSI”), 491 U.S. 350, 367-68 (1989)).

To determine whether abstention is

appropriate, “[t]he question . . . is threefold: first, do [the proceedings] constitute an
ongoing state judicial proceeding; second, do the proceedings implicate important state
interests; and third, is there an adequate opportunity in the state proceedings to raise
constitutional challenges.” Middlesex Cty. Ethics Comm., 457 U.S. at 432 (emphasis
omitted).
Defendants argue that federal courts routinely apply Younger to abstain in matters
concerning a state’s child welfare system. But the cases on which Defendants rely are
not on point. A request to intervene in a child-custody dispute between divorced or
divorcing parents involves a different kind of state judicial proceeding than that at issue
here, where the juvenile court conducts a quasi-administrative review of each county’s
child-protection decisions. See, e.g., Carlson v. Cty. of Ramsey, No. 16cv765, 2016 WL
3352196, at *6 (D. Minn. June 15, 2016) (Nelson, J.) (finding Younger abstention
appropriate in parent’s challenge to state court’s custody and visitation-rights ruling); see
also Tony Alamo Christian Ministries v. Selig, 664 F.3d 1245, 1247 (8th Cir. 2012)
(determining that Younger abstention precluded federal court from ruling on child
custody dispute). As these decisions imply, a federal court ruling that a state court’s
5

custody determination is erroneous constitutes the sort of “interference” with state court
proceedings that Younger prohibits.
There can be no dispute that there are ongoing state judicial proceedings here.
The relevant question, however, is “whether the federal proceeding will interfere with”
those proceedings. 31 Foster Children v. Bush, 329 F.3d 1255, 1276 (11th Cir. 2003).
Plaintiffs argue that their claims seek relief against executive-branch officials, not against
any judicial proceeding, and thus that this proceeding will not interfere with any pending
juvenile court proceeding. See NOPSI, 491 U.S. at 368 (stating that Younger does not
“require[] abstention in deference to a state judicial proceeding reviewing legislative or
executive action”). And the Supreme Court has cautioned that “[c]ircumstances fitting
within the Younger doctrine . . . are ‘exceptional.’” Sprint Commc’ns, 134 S. Ct. at 588
(quoting NOPSI, 491 U.S. at 367-68).
The judicial proceedings underlying this case do not fit within the narrow
categories outlined in NOPSI. They are not criminal prosecutions, civil enforcement
proceedings, or proceedings “that are uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” NOPSI, 491 U.S. at 368. In the absence of these
circumstances, “the pendency of an action in [a] state court is no bar to proceedings
concerning the same matter in the Federal court having jurisdiction.” Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (quotation omitted). Nor
will Plaintiffs’ requested relief interfere directly with any pending judicial proceedings.
Plaintiffs ask for declaratory judgments that various actions or inactions on the part of
Hennepin County’s child protection officials violate their constitutional and statutory
6

rights (Am. Compl. at 92), and also seek the appointment of a special master to oversee
the County’s compliance with federal and state law. (Id. at 92-94.) While the special
master’s work might duplicate the work of a juvenile court proceeding, it will not
interfere with that proceeding.
Defendants have not established that abstention is appropriate under the principles
espoused in Younger and its progeny. The Motion on this basis is therefore denied.
b.

O’Shea abstention

In O’Shea v. Littleton, the Supreme Court counseled against federal audits of state
judicial proceedings, accomplishing “the kind of interference that Younger . . . and
related cases sought to prevent.” O’Shea, 414 U.S. at 500. Defendants argue that
Plaintiffs’ request for a special master to oversee all aspects of the County’s foster-care
system amounts to the kind of “ongoing federal audit” that O’Shea prohibits. Id.
O’Shea noted that “principles of equity, comity, and federalism . . . must restrain a
federal court when asked to enjoin a state court proceeding. Id. at 499 (quoting Mitchum
v. Foster, 407 U.S. 225, 243 (1972)). Although Plaintiffs do not ask for an injunction,
Defendants argue that the appointment of a special master would effectively enjoin
Minnesota’s juvenile courts. See Old Republic Union Ins. Co. v. Tillis Trucking Co., 124
F.3d 1258, 1261 (11th Cir. 1997) (stating that the principles of Younger applied to
declaratory judgments that would effectively enjoin state proceedings).
Where there is a potential for conflicting federal and state court orders, abstention
is appropriate. E.g., 31 Foster Children, 329 F.3d at 1278 (noting that abstention was
warranted, in part, because the “federal and state courts could well differ, issuing
7

conflicting orders about what is best for a particular [child]”). Here, however, Plaintiffs
do not ask for relief that supplants the decisionmaking authority of the state courts.
Rather, Plaintiffs ask for the special master to oversee the work of Hennepin County’s
child-protection system, to ensure that children are receiving the services state law
guarantees them.

Cf., id. (noting that the plaintiffs’ requested relief included

determinations regarding “whether a particular placement is safe or appropriate”). Thus,
the relief requested is not “directly aimed at the functioning of the juvenile courts.”
Tinsley v. McKay, 156 F. Supp. 3d 1024, 1043 (D. Ariz. 2015). Plaintiffs ask that the
special master ensure that Hennepin County officials are complying with state and federal
law, not that the juvenile courts are complying with the law. (See Am. Compl. 93-94
¶ 3(a)-(n).) 2 This requested relief does not implicate “sensitive federalism concerns.”
Horne v. Flores, 557 U.S. 433, 448 (2009).
Although Minnesota’s juvenile courts have significant responsibilities in fostercare cases, Plaintiffs do not claim “any statutory or constitutional violations in the
procedure or administration of” those courts. Tinsley, 156 F. Supp. 3d at 1044. Rather,
Plaintiffs claim that state and County officials are not complying with either their
federally mandated requirements or the orders of the juvenile courts because of the
systemic problems this lawsuit seeks to address. The principles of O’Shea do not apply.

22

For example, Plaintiffs ask that the special master require Hennepin County to employ
sufficient caseworkers, develop foster-care placements, recruit adoptive families, and to
provide data on its compliance with federal law in this regard.
8

2.

Constitutional Claims
a.

Conscience-shocking standard

Defendants argue that Plaintiffs have failed to allege sufficient facts to establish
their substantive due process claim. There is no dispute that a state has a duty “to protect
individuals who are in its custody,” including children placed in foster care. James ex rel
James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006). In the context of this relationship, a
substantive due process violation exists “only if the official conduct or inaction is so
egregious or outrageous that it is conscience-shocking.” Id. Moreover, an “officials’
conduct will not be found to be conscience-shocking unless the officials acted with
deliberate indifference.” Id.
Whether particular action or inaction shocks the conscience is necessarily factdependent. Plaintiffs have alleged that Defendants ignored the dangers and harms the
systemic failures created for children in their care.

Plaintiffs’ allegations include a

description of the unspeakable things that have happened to each of them during their
time in the Hennepin County foster-care system. At this stage of the litigation, Plaintiffs’
substantive due process claim survives because they have sufficiently pled deliberate
indifference.
b.

“Right to a permanent home”

Plaintiffs’ second constitutional claim asserts that Defendants violated Plaintiffs’
constitutional rights by failing to “take all reasonable efforts toward securing a permanent
home” for Plaintiffs. (Am. Compl. ¶ 373.) But as Defendants point out, there is no
constitutional right to a permanent home.
9

Plaintiffs deny that they seek a right to a permanent home, contending instead that
the right at issue is the “right to be free from harm and to have their basic human needs
met” in a system that promotes “the goal of finding them a permanent home.” (Pls.’
Opp’n Mem. (Docket No. 63) at 43.) But Plaintiffs cannot escape the allegations in their
Amended Complaint, which seeks to vindicate a “right to a permanent home” (Am.
Compl. ¶ 374), not a right to be free from harm or to have their basic needs met.
Plaintiffs implicitly acknowledge that there is no constitutional right to a
permanent home. Their second cause of action is dismissed without prejudice.
3.

CWA

Plaintiffs’ third cause of action contends that Defendants violated the CWAby
failing to provide a written case plan (Am. Compl. ¶¶ 376(a), (b), (c)) or a case review
system (id. ¶ 376(d)), that complies with §§ 675(1)(B), 675(5)(A), and 671(a)(16) of the
CWA.
42 U.S.C. § 1983 provides a federal cause of action against those who, under color
of state law, deprive a person of “rights, privileges, or immunities secured by the
Constitution and laws.” “[T]his provision safeguards certain rights conferred by federal
statutes,” although it vindicates “the violation of a federal right, not merely a violation of
federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citation and emphases
omitted). Thus, Plaintiffs may use § 1983 to enforce the CWA, but only if the sections of
the CWA at issue create an individual right. Id. Whether a statute creates an individual
right depends on several factors, including whether Congress intended the provision to
benefit someone in the plaintiff’s position, whether the right is “not so ‘vague and
10

amorphous’ that its enforcement would strain judicial competence,” and whether the
statute “unambiguously impose[s] a binding obligation on the States.” Id. at 340-41. A
statute meeting all three elements of this test is “presumptively enforceable” under
§ 1983. Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190, 1195-96
(8th Cir. 2013). And the statute only meets the first prong of the test if Congress
“unambiguously conferred” the right. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
“The CWA is a piece of Spending Clause legislation that creates a cooperative
state-federal program to fund foster care and adoption assistance.” Kincade, 712 F.3d at
1194. Each state’s eligibility for these funds is predicated on compliance with certain
statutory requirements. The Secretary of the federal Department of Health and Human
Services oversees the states’ compliance, and may withhold funding if a state is not in
substantial compliance with the statute’s dictates. See 42 U.S.C. §§ 1320a-2a(a)(3),
(b)(3).

If a state fails to substantially comply, the Secretary may withhold federal

matching funds or take other corrective measures. Id. § 1320a-2a(b).
Plaintiffs claim that the statute also confers rights on them to enforce the statute’s
requirements. But there can be no private right of action to enforce two of the sections on
which Plaintiffs rely for their claims, §§ 675(1)(B) and § 675(5)(A). Section 675 is the
definition section of the statute, and “[f]inding an enforceable right solely within a purely
definitional section is antithetical to requiring unambiguous congressional intent.”
Kincade, 712 F.3d at 1197. Thus, to succeed on their CWA claims, the Court must
determine whether there is a private right of action to enforce the substantive section on
which Plaintiffs rely, § 671(a)(16). This section provides:
11

In order for a State to be eligible for payments under this part, it shall have
a plan approved by the Secretary which . . . provides for the development of
a case plan (as defined in section 675(1) of this title and in accordance with
the requirements of section 675a of this title) for each child receiving foster
care maintenance payments under the State plan and provides for a case
review system which meets the requirements described in sections 675(5)
and 675a of this title with respect to each such child.
42 U.S.C. § 671(a)(16).
According to Plaintiffs, the language in § 671(a)(16) requiring a case plan “for
each child” and a case review system “with respect to each such child” confers rights on
those children to enforce the statute’s requirements.

Plaintiffs’ focus on the “each

child” language in this section, however, is inappropriately narrow. Plaintiffs ignore the
language of the section as a whole, which addresses the requirements a state must meet to
be eligible for funding: “In order for a State to be eligible for payments . . . .” Id. This
state-focused language is in sharp contrast with statutes that clearly confer individual
rights, such as Title IX, which provides that “[n]o person . . . shall . . . be subjected to
discrimination.” Kincade, 712 F.3d at 1197 (quoting 20 U.S.C. 1681(a)). And although
it may be that the CWA evinces an intent that each foster child benefit from the case-plan
and case-review-system requirements, “[t]he ability to locate a nexus between § 1983
plaintiffs and a benefit conferred by a statute is necessary but not sufficient” to finding an
individually enforceable right. Id. at 1199. Unless the statute is “phrased in terms of the
persons benefitted,” there is no individual right conferred. Gonzaga, 536 U.S. at 284
(quotation omitted).
In Kincade, the Eighth Circuit Court of Appeals found that there was no private
right of action under the foster-care maintenance payment section of the CWA. This
12

section provides that “[e]ach State . . . shall make foster care maintenance payments on
behalf of each child who has been removed from the home of a relative . . . into foster
care.” 42 U.S.C. § 672(a)(1). Foster-care providers in Missouri sued, contending that the
state was not providing payments sufficient to meet the requirements of the CWA.
Kincade, 712 F.3d at 1193. The Court of Appeals determined that the providers could
not sue under § 672, because that section is directed to “the states as regulated
participants in the CWA” and not to individuals. Id. at 1197.
Even more recently, the Eighth Circuit determined that there is no private right of
action under the Medicaid Act. Does v. Gillespie, 867 F.3d 1034, 1037 (8th Cir. 2017).
At issue in Gillespie was the provider-choice provision of Medicaid. This provision
requires a state Medicaid plan to provide “any individual eligible for medical assistance
(including drugs) . . . such assistance from any [provider] qualified to perform the service
or services required.” 42 U.S.C. §1396a(a)(23)(A). The Gillespie plaintiffs were women
who wanted to use Planned Parenthood’s services after Arkansas terminated Planned
Parenthood as an approved Medicaid provider.

Gillespie, 867 F.3d at 1038.

The

plaintiffs asserted that this provision’s use of “any individual” meant that the rights
conferred were privately enforceable through § 1983. Id. at 1042. The Court of Appeals
disagreed, noting that the provision is “phrased as a directive to the federal agency
charged with approving state Medicaid plans, not as a conferral of the right to sue upon
the beneficiaries of the State’s decision to participate in Medicaid.” Id. at 1041 (quoting
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1387 (2015)). Similarly, the
provision at issue here is phrased as a directive to states regarding what the state must do
13

to be eligible for foster-care and adoption-assistance payments, not as an “unambiguously
conferred right,” Gonzaga, 536 U.S. at 283, for the children mentioned in the case plan
section. See, e.g., Carson P. ex rel Foreman v. Heineman, 240 F.R.D. 456, 544 (D. Neb.
2007) (noting that § 671(a)(16) is “not concerned with ‘whether the needs of any
particular person have been satisfied’” and is therefore not individually enforceable)
(quoting Gonzaga, 536 U.S. at 288-89).
But many courts have agreed with Plaintiffs’ position. See, e.g., Henry A. v.
Willden, 678 F.3d 991, 1006 (9th Cir. 2012) (“We . . . join the majority of federal courts
in holding that the case plan provisions [of § 671(a)(16)] are enforceable through
§ 1983.”) (citing cases). These decisions have found that the section’s use of “shall” and
focus on the requirement “for each child” “expresses a clear mandate” that the section is
individually enforceable. Id. at 1006-07 (quoting Connor B. ex rel Vigurs v. Patrick, 771
F. Supp. 2d 142, 171 (D. Mass. 2011)). The Court is not persuaded that the Eighth
Circuit would follow the reasoning of these cases, however. The decision in Henry A.,
for example, rested in part on the fact that the Ninth Circuit had earlier determined that
§ 672(a) created an individually enforceable right. Id. at 1007. But in Kincade, contrary
to the Ninth Circuit’s resolution of the issue, the Eighth Circuit held that § 672(a) was not
privately enforceable under § 1983. Kincade, 712 F.3d at 1203. Especially in light of
Gillespie’s emphasis on a narrow interpretation of Blessing’s individual-enforcement
requirements, Plaintiffs have not established that § 671(a)(16) is individually enforceable.
In addition to the lack of rights-creating language in the statute, other legislative
history indicates that Congress did not intend § 671(a)(16) to be individually enforceable.
14

In 1996, Congress amended the CWA to explicitly provide that “[a]ny individual who is
aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may
bring an action seeking relief from the State or other entity in any United States district
court.” Small Business Job Protection Act of 1996, Pub. L. No. 104-188, tit. I, § 1808(b),
110 Stat. 1903; see 42 U.S.C. § 674(d)(3)(A). Congress’s choice to amend the statute to
include a private right of action for a violation of § 671(a)(18) and not any of § 671(a)’s
other requirements “is strong evidence that Congress did not intend these other various
State plan elements in . . . § 671(a) to confer rights enforceable pursuant to § 1983.”
Charlie H. v. Whitman, 83 F. Supp. 2d 476, 489 (D.N.J. 2000).
Section 671(a)(16) does not unambiguously confer rights on Plaintiffs to enforce
the section’s case-plan and case-review-system requirements.

Their CWA claim is

therefore dismissed.
B.

DHS Commissioner’s Motion
1.

Official Capacity

Plaintiffs’ claims against Commissioner Piper are brought against her in her
official capacity. As such, under § 1983, Plaintiffs must establish that the governmental
entity, here the Minnesota Department of Human Services, was the “moving force”
behind the violations they allege. Nix v. Norman, 879 F.2d 429, 432 (8th Cir. 1989). In
other words, to succeed on pleading official-capacity claims against the Commissioner,
Plaintiffs must either identify a state policy or custom that played a part in the alleged
violation of their constitutional rights, or that the Commissioner had final authority over
the subject matter and exercised her authority in an unconstitutional way. Id. at 433.
15

It is important to note that Plaintiffs seek only equitable relief, and thus the typical
official-immunity issues do not apply. Edelman v. Jordan, 415 U.S. 651, 667 (1974); see
also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (finding that because
official-capacity actions for injunctive relief are not treated as actions against the state,
officials sued in their official capacities for prospective relief are “persons” under
§ 1983). And Plaintiffs’ allegations fit within the Nix framework: Plaintiffs contend that
the Commissioner had final authority over the foster-care system and failed to exercise
that authority in a way that violated individuals’ constitutional rights. Whether Plaintiffs
will ultimately marshal enough evidence to prove these allegations is not an appropriate
inquiry at this stage. For purposes of Rule 12(b)(6), Plaintiffs have plausibly pleaded this
claim.
2.

Substantive Due Process

The Commissioner also argues that Plaintiffs’ substantive due process claim
against her fails because she is not in a special relationship with Plaintiffs. She asserts
that all Plaintiffs are in the custody of the County, not DHS.
The parties do not dispute that the state or the County creates a “special custodial
relationship” with a child when the entity removes the child “from his caregiver and
place[s] him in foster care.” Norfleet ex rel Norfleet v. Ark. Dep’t of Human Servs., 989
F.2d 289, 293 (8th Cir. 1993). This special relationship gives rise to certain obligations,
such as the duty “to provide adequate medical care, protection[,] and supervision.” Id.
Four of the thirteen Plaintiffs are in legal custody of the state, not Hennepin
County, although the County has the responsibility to provide care for these four
16

Plaintiffs, just as it does for the nine who are in the County’s legal custody. There is
clearly a special relationship between the state and those four children that could give rise
to a substantive due process claim. It is irrelevant who has the immediate authority over
these four children. By assuming legal custody over them, the state has the requisite
special relationship with them to undergird their substantive due process claim, at least
for purposes of a motion to dismiss.
As to the Plaintiffs who are not legal wards of the state, Plaintiffs’ theory is that
the requisite special relationship exists by virtue over the monitoring authority the
Commissioner retains over every county foster-care system. But as the Commissioner
argues, this is essentially an allegation of supervisory liability, which is not appropriate
under § 1983.

Indeed, in their opposition memorandum, Plaintiffs argue that the

Commissioner “retain[s] a significant supervisory role over how funds are distributed to
Hennepin County and for monitoring child welfare systems.” (Pls.’ Opp’n Mem. at 62.)
The Commissioner’s supervisory functions do not create a special relationship with all
children in the County’s foster-care system, however. As to any Plaintiff who is not a
ward of the state, Plaintiffs’ substantive due-process claim against Commissioner Piper
fails.
C.

County Defendants’ Motion
1.

Negligence

Plaintiffs’ negligence claim is brought only against the County Defendants, and
only on behalf of the maltreatment report class. It alleges that the County Defendants
“have performed negligent and inadequate [maltreatment] investigations” to the
17

detriment of Plaintiffs. (Am. Compl. ¶ 383.) According to the allegations, because of
these negligent investigations, Plaintiffs “have been, and are at risk of being, deprived of
their statutory entitlement to the performance of appropriate and adequate investigations
and family assessments when there are reports of child abuse or neglect.” (Id. ¶ 387.)
The County Defendants argue that the negligence claim is barred by statutory
immunity. Under Minnesota law, statutory immunity protects governmental entities from
liability for “[a]ny claim based upon the performance or the failure to exercise or perform
a discretionary function or duty, whether or not the discretion is abused.” Minn. Stat.
§ 466.03, subd. 6. “Statutory immunity is extended when there has been a planning-level
decision; that is, social, political, or economic considerations have been evaluated and
weighed as part of the decision-making process.” Schroeder v. St. Louis Cty., 708
N.W.2d 497, 504 (Minn. 2006). But it “does not extend to operational-level decisions,
those involving day-to-day operations of government, the application of scientific and
technical skills, or the exercise of professional judgment.” Id.
To determine whether statutory immunity applies, the Court must “first identify
the precise government conduct being challenged.” Id. Plaintiffs challenge a multitude
of actions and inactions on the part of the County and its officials, most particularly the
failure of caseworkers to properly and completely investigate maltreatment reports. As
Plaintiffs point out, this duty to investigate is not discretionary, but rather is mandated by
the Child Abuse Reporting Act, Minn. Stat. § 626.556. Further, Plaintiffs allege that
County caseworkers violated specific non-discretionary duties under this Act, including
the duty to screen maltreatment reports within 24 hours of receiving them (Am. Compl.
18

¶ 281), and failing to make personal contact with the child and the caregiver in more than
half of all maltreatment-report cases. (Id. ¶ 282.) These alleged failures constitute
operational-level, not planning-level decisions. Plaintiffs’ negligence claim cannot be
dismissed on this basis.
A claim for negligence requires pleading a duty, a breach of that duty, and injury
caused by the breach. Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 869 (D. Minn.
2012) (Nelson, J.) (citations omitted). Plaintiffs have plausibly alleged a duty and a
breach, but they have failed to plausibly allege any injury separate from the breach itself.
Plaintiffs do not claim, for instance, that the County’s negligent investigations caused
them to endure further abuse or neglect.

Rather, Plaintiffs’ only claim is that the

negligent investigations caused them to be deprived of their right to investigations that
were not negligent. This is insufficient, and Plaintiffs’ negligence claim is therefore
dismissed without prejudice.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

The Hennepin County Defendants’ Motion to Dismiss (Docket No. 49) is
GRANTED in part and DENIED in part;

2.

The Commissioner’s Motion to Dismiss (Docket No. 55) is GRANTED in
part and DENIED in part;

3.

Plaintiffs’ Third Cause of Action (Docket No. 45, ¶¶ 375-76) is
DISMISSED with prejudice; and

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4.

Plaintiffs’ Second and Fourth Causes of Action (Docket No. 45, ¶¶ 371-74;
377-87) are DISMISSED without prejudice.

s/Paul A. Magnuson

Date: February 16, 2018

Paul A. Magnuson
United States District Court Judge

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