G. K. et al v. Governor, NH, State of, et al

Filing 49

///MEMORANDUM AND ORDER granting in part and denying in part 29 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, defendants' motion to dismiss (Doc. No. 29 ) is granted with respect to plaintiffs' right to counsel claim (Count 1) and denied with respect to the remaining counts. So Ordered by Judge Paul J. Barbadoro. (js)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

G.K., by their next friend,
Katherine Cooper et al.
v.

Case No. 21-cv-4-PB
Opinion No. 2021 DNH 143

Christopher Sununu, Governor
of New Hampshire et al.
MEMORANDUM AND ORDER
Plaintiffs in this class action are minors with mental
disabilities who have been placed in the legal custody of the
New Hampshire Division of Children, Youth and Families (“DCYF”)
due to parental abuse or neglect.

They have sued New Hampshire

Governor Christopher Sununu and other State officials arising
out of the operation of the State’s foster care system.
Plaintiffs seek declaratory and injunctive relief on behalf of
themselves and a putative class on the ground that defendants
are violating their federal constitutional and statutory rights
by unnecessarily placing them in institutional and group care
facilities without the benefit of an attorney or adequate case
planning.

Defendants have moved to dismiss the complaint for

failure to state a claim upon which relief may be granted.

For

the following reasons, I grant the motion in part and deny it in
part.

Case 1:21-cv-00004-PB Document 49 Filed 09/09/21 Page 2 of 34

I.
A.

BACKGROUND

New Hampshire Dependency Proceedings
New Hampshire has in place a judicial process through which

a child may be removed from the home of an abusive or neglectful
parent.

The key features of that process, commonly referred to

as dependency proceedings, are set forth in the State’s Child
Protection Act.

See N.H. Rev. Stat. Ann. § 169-C.

Dependency proceedings typically begin with the filing of a
petition alleging that a child has been abused or neglected,
which is filed in the family division of the New Hampshire
circuit court.

See § 169-C:7, I.

Although any person may file

such a petition, DCYF is usually the petitioner.

See id.

The

filing of a petition sets into motion a series of hearings that
determine the child’s placement and legal custody.

“The best

interest of the child” is the court’s “primary consideration” in
these proceedings.

§ 169-C:2, I.

A preliminary hearing is held shortly after a petition is
filed to determine if reasonable cause exists to believe that
the child has been abused or neglected.

§ 169-C:15, I.

If the

court finds reasonable cause, it may temporarily place the child
with DCYF.

See §§ 169-C:15, III(c), 169-C:16, I(c), 169-C:3,

XXV.
Within sixty days of the filing of the petition, the court
must hold an adjudicatory hearing on the merits of the petition.

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§ 169-C:15, III(d).

At that hearing, the petitioner has the

burden to prove the allegations by a preponderance of the
evidence.

§ 169-C:13.

The parents “have the right to present

evidence and witnesses on their own behalf and to cross-examine
adverse witnesses.”

§ 169-C:18, III.

The court is not bound by

the technical rules of evidence and may admit any evidence that
it considers relevant and material.

§ 169-C:12.

If the court

makes a finding that the child has been abused or neglected, the
court can make a “preliminary disposition” for the protection
and placement of the child, such as ordering a transfer of legal
or protective supervision of the child to DCYF.

See §§ 169-

C:18, V, 169-C:16, I.
The court must hold a dispositional hearing within thirty
days of the adjudicatory hearing.

§ 169-C:18, VII.

At that

time, the court determines the appropriate final disposition,
which may include transferring legal custody of the child to
DCYF.

See § 169-C:19, III(a).

Such transfer vests DCYF with

“[t]he right to determine where and with whom the child shall
live.”

§ 169-C:3, XVII(a).

Once a child is in DCYF’s legal custody, the court will not
transfer custody back to the parents unless they demonstrate,
among other things, that a return of custody is in the child’s
best interest.

See § 169-C:23, III.

The parents generally must

make that showing at a permanency hearing, which must be held

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within a year of the adjudicatory hearing.

See § 169-C:24-b, I.

If the parents do not meet their burden at the permanency
hearing, the court must identify permanent plans for the child
other than parental reunification.

See § 169-C:24-b, II.

Such

plans may involve adoption, guardianship with an appropriate
party, or some other permanent living arrangement.

See id.

At

least annually thereafter, the court must review the steps DCYF
has taken in furtherance of finalizing the plan that is in
effect for the child.
B.

See § 169-C:24-c.

Court-Appointed Representatives
In all dependency proceedings, the court must appoint an

attorney to represent an indigent parent who has been accused of
abusing or neglecting the child.
C:10, II(a).

N.H. Rev. Stat. Ann. § 169-

Counsel may be appointed for an indigent parent

not accused of abuse or neglect “if the parent is a household
member and such independent legal representation is necessary to
protect the parent’s interests.”

Id.

A child involved in a dependency proceeding is entitled to
the appointment of a Court Appointed Special Advocate (“CASA”)
or “other approved program guardian ad litem” to function as the
child’s guardian ad litem (“GAL”).
§ 169-C:10, I.

§ 169-C:15, III(a); see

If there is no GAL available for the

appointment, the court may appoint an attorney to represent the
child.

§ 169-C:10, I.

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The New Hampshire Supreme Court has promulgated rules that
delineate the duties and ethical standards required of GALs.
See N.H. Code Admin. R. Gal 501.01—505.02.
the best interest of the child.

A GAL must act in

Gal 503.02(a).

To form a good

faith conclusion about the child’s best interest, the GAL must
“gather such facts and information regarding the family history,
background, current circumstances, concerns and wishes of the
[child], from the [child] and from other sources.”
503.11(a).

Gal

The GAL must make recommendations to the court

consistent with the GAL’s independent assessment of the child’s
best interest.

See Gal 503.02(d).

The GAL also must

independently assess DCYF’s recommendations.

Gal 504.01(b).

When directed by the court, the GAL must prepare a report with
recommendations, including for dispositional, permanency, and
post-permanency hearings.

Gal 504.01(c).

Prior to making a

final recommendation to the court, the GAL must meet with the
child on at least one occasion and inform the child about the
status of the case.

Gal 503.12(a)-(c).

If the GAL becomes aware that the child disagrees with a
recommendation being made by the GAL, the GAL “shall fully
advise the appointing court of this fact.”

Gal 504.01(d).

In

the event of such a conflict, the court has the authority to
appoint an attorney to represent the child.
Ann. § 169-C:10, II(a).

See N.H. Rev. Stat.

The attorney’s representation “may

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include counsel and investigative, expert and other services,
including process to compel the attendance of witnesses, as may
be necessary to protect” the child’s rights.
C.

§ 169-C:10, II(b).

The Complaint
The four named plaintiffs, G.K., C.I., T.L., and R.K.

(collectively, “Named Plaintiffs”1), are children aged fourteen
to seventeen who have been placed in DCYF’s legal custody as a
result of dependency proceedings.

Each has at least one mental

disorder recognized by the American Psychiatric Association.
DCYF has placed Named Plaintiffs in institutional or group care
(collectively, “congregate care”) facilities.2
G.K. was removed from their mother’s home about two years
ago based on allegations of abuse.

Initially, G.K. was placed

in the care of their grandfather, but after two months DCYF
placed G.K. in a congregate care facility where they remain
today.

This facility is punitive, routinized, and regulated by

Named Plaintiffs proceed using pseudonymous initials to protect
their identities. The complaint uses the pronouns “they” and
“their” when referring to G.K., C.I., T.L., and R.K.
individually. I adopt this usage in this Memorandum and Order.
1

Under New Hampshire law, a “child care institution” is a
“residential child care agency where more than 12 children are
received and maintained for 24-hour care for the purpose of
providing them with care or training, or both.” N.H. Rev. Stat.
Ann. § 170-E:25, III. A “group home” is a “child care agency
which regularly provides specialized care for at least 5 but no
more than 12 children who can benefit from residential living
either on a short-term or long-term basis.” § 170-E:25, II(b).
2

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strict and impersonal rules, resulting in G.K.’s inability to
fully integrate within their community.
C.I. was first placed in DCYF’s custody about twelve years
ago in response to allegations of parental abuse.

A

reunification effort a little over ten years ago failed, and
C.I. has been in DCYF’s custody ever since.

During that time,

C.I. has been placed with eight different foster families and
three congregate care facilities.

C.I. is currently residing in

an out-of-state congregate care facility, where they have been
unable to participate in any community activities.
T.L. was placed in DCYF’s care roughly two years ago based
on abuse and neglect allegations against their mother.

DCYF

initially placed T.L. in the residential program at the special
education school they were already attending at the time.
Several months later, DCYF placed T.L. in a congregate care
facility outside of New Hampshire where they continue to reside.
They are prevented from having regular visits with their family
and from making or visiting friends outside of the facility.
R.K. was placed in DCYF’s custody over two years ago due to
allegations of neglect.

Thereafter, DCYF placed R.K. in three

different congregate care facilities in New Hampshire.

Based on

conduct R.K. engaged in at their third placement, they were
charged with and convicted of various delinquency offenses and
committed to the Sununu Youth Services Center.

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Named Plaintiffs would prefer to live in a family setting
or with a family member.

None have had counsel appointed to

represent them in their dependency proceedings.

They do not

recall participating in their case planning or having an
adequate case plan prepared for them, as required by federal
law.
Named Plaintiffs seek declaratory and injunctive relief
based on alleged “continuous and systemic legal deficiencies of
New Hampshire’s child welfare system.”

Compl. ¶ 25.

They

assert six claims, both as individuals and on behalf of a
putative class (“Class Plaintiffs”) pursuant to Federal Rules of
Civil Procedure 23(a) and 23(b)(2).

The class that Named

Plaintiffs seek to represent includes all children who are, or
will be, in DCYF’s legal custody and: (1) are between fourteen
and seventeen years old, (2) have a mental impairment that
substantially limits a major life activity, a record of such an
impairment, or are regarded as having such an impairment, and
(3) are currently placed, or are at risk of being placed, in a
congregate care facility that is not the least restrictive
setting appropriate to their needs.

The claims can be grouped

into three categories: (1) violation of the due process right to
have counsel appointed in all dependency proceedings (Count 1);
(2) failure to comply with the case planning requirements of the
Adoption Assistance and Child Welfare Act of 1980 (“CWA”), 42

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U.S.C. §§ 671 et seq. (Count 2); and (3) violations of Title II
of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29
U.S.C. §§ 794 et seq., based on defendants’ alleged failure to
administer the foster care system in a manner that enables
plaintiffs to live in the most integrated settings appropriate
to their needs (Counts 3-6).

Defendants have challenged the

sufficiency of plaintiffs’ allegations and moved to dismiss the
complaint in its entirety.
II.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a plaintiff must make factual allegations
sufficient to “state a claim to relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

This

standard “demands more than an unadorned, the defendantunlawfully-harmed-me accusation.”

Id.

A claim is facially

plausible if it pleads “factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Id.

In testing a complaint’s sufficiency, I employ a two-step
approach.

See Ocasio–Hernández v. Fortuño-Burset, 640 F.3d 1,

12 (1st Cir. 2011).

First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

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or threadbare recitals of the elements of a cause of action.”
Id. (cleaned up).

A claim consisting of little more than

“allegations that merely parrot the elements of the cause of
action” may be dismissed.

Id.

Second, I credit as true all

non-conclusory factual allegations and the reasonable inferences
drawn from those allegations, and then determine if the claim is
plausible.

Id.

The plausibility requirement “simply calls for

enough fact to raise a reasonable expectation that discovery
will reveal evidence” of illegal conduct.
556.

Twombly, 550 U.S. at

The “make-or-break standard” is that those allegations and

inferences, “taken as true, must state a plausible, not a merely
conceivable, case for relief.”

Sepúlveda–Villarini v. Dep’t of

Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).
III. ANALYSIS
Defendants contend that each of plaintiffs’ three sets of
claims fails to state a claim upon which relief may be granted.
First, the right to counsel claim fails, defendants argue,
because it requires an individualized assessment of each child’s
dependency proceeding, as opposed to the categorical approach
proposed by plaintiffs.

Second, defendants maintain that there

is no private right of action to enforce the case planning
requirements of the CWA.

Third, the disability discrimination

claims are allegedly deficient because the State is not

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segregating disabled children from non-disabled children in its
custody.
A.

I address these arguments in turn below.

Right to Counsel in Dependency Proceedings
The complaint alleges that a category of children in DCYF’s

legal custody – children between the ages of fourteen and
seventeen with mental disabilities who are currently placed, or
are at risk of being placed, in congregate care settings – have
their federal procedural due process rights violated when
counsel is not appointed to represent them in all dependency
proceedings.

The premise of this claim is that plaintiffs, as a

class, have a categorical right to court-appointed counsel in
every dependency proceeding regardless of the circumstances of
their individual cases.
Defendants acknowledge that all children in dependency
proceedings have a right to counsel.

But, they argue, this

right is conditional: it requires a case-by-case assessment of
the factors that the Supreme Court identified in Matthews v.
Eldridge, 424 U.S. 319 (1976), which balance competing public
and private interests.

Defendants maintain that those factors

must consider the particular features of each dependency
proceeding and cannot be determined on a group-wide basis.
The question, then, is not whether plaintiffs have a right
to counsel – it is uncontested that they do.

Nor is there a

claim that Named Plaintiffs are entitled to counsel based on

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individualized assessments of their dependency proceedings under
Eldridge.

Rather, the sole issue is whether the State is under

a constitutional duty to provide counsel for Class Plaintiffs in
all dependency proceedings because the Eldridge factors, applied
on a class-wide basis, inevitably require appointment of counsel
irrespective of the individual circumstances of each child’s
case.

I agree with defendants that the decision as to the need

for appointed counsel must be made in the context of each
dependency proceeding.
“Due process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances.”

Eldridge, 424 U.S. at 334 (cleaned up).

Rather, “due process is flexible,” which is “necessary to gear
the process to the particular need; the quantum and quality of
the process due in a particular situation depend upon the need
to serve the purpose of minimizing the risk of error.”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
12-13 (1979) (cleaned up).

Evaluating what process is due

requires balancing the Eldridge factors, which are:
(1) the private interest that will be affected by the
official action; (2) the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.

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Eldridge, 424 U.S at 335.
The Supreme Court applied this framework in an analogous
context in Lassiter v. Department of Social Services, 452 U.S.
18 (1981).

The issue in Lassiter was whether indigent parents

involved in termination of parental rights proceedings have a
right to court-appointed counsel.

The Supreme Court held that

the appointment of counsel in such proceedings must be
determined on a case-by-case basis applying the Eldridge
factors.

Id. at 31-32.

As the court reasoned, “in a given case

[where] the parent’s interests were at their strongest, the
State’s interests were at their weakest, and the risks of error
were at their peak, it could not be said that the Eldridge
factors did not overcome the presumption against the right to
appointed counsel.”

Id. at 31.

But, the Court added, “since

the Eldridge factors will not always be so distributed . . .
neither can we say that the Constitution requires the
appointment of counsel in every parental termination
proceeding.”

Id.

In adopting a case-by-case approach, the court in Lassiter
relied on an earlier case, Gagnon v. Scarpelli, 411 U.S. 778
(1973), which addressed whether due process required the
appointment of counsel for indigent probationers in probation
revocation hearings.

See Lassiter, 452 U.S. at 31 (citing

Gagnon, 411 U.S. at 788).

Endorsing an individualized

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assessment in that context, the Supreme Court in Gagnon observed
that “[t]he need for counsel at revocation hearings derives, not
from the invariable attributes of those hearings, but rather
from the peculiarities of particular cases.”

411 U.S. at 789.

The court suggested that counsel may be required, for example,
when a case involves “a disputed set of facts where the
presentation requires the examining or cross-examining of
witnesses or the offering or dissecting of complex documentary
evidence.”

Id. at 786-87.

In Lassiter, the Supreme Court

“adopt[ed] the standard found appropriate in Gagnon” and left
“the decision whether due process calls for the appointment of
counsel for indigent parents in termination proceedings to be
answered in the first instance by the trial court, subject, of
course, to appellate review.”

Lassiter, 452 U.S. at 31-32.

Neither the Supreme Court nor any federal court of appeals
has considered whether the same standard should apply to the
appointment of counsel for children in dependency or termination
proceedings.3

The Washington Supreme Court, however, has twice

held that due process does not categorically require that

The two types of proceedings have distinct purposes. As the
name implies, the purpose of termination proceedings “is to
permanently sever the parent-child relationship,” whereas the
goal of dependency proceedings “is to reunify the family.” In
re C.M., 163 N.H. 768, 774 (2012). A dependency proceeding,
however, is often “a first step in a process that may ultimately
result in termination of parental rights,” although “such a
result is by no means a foregone conclusion.” Id. at 775.
3

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children be appointed counsel in such proceedings.

See In re

Dependency of E.H., 427 P.3d 587 (Wash. 2018); In re Dependency
of MSR, 271 P.3d 234 (Wash. 2012).

In MSR, the court considered

whether due process requires that every child in a termination
proceeding be appointed counsel.

271 P.3d at 237.

Relying on

Lassiter, the court held that a child’s right to counsel in
these proceedings “is not universal,” and that “the trial judge
. . . should apply the [Eldridge] factors to each child’s
individual and likely unique circumstances.”

Id. at 245.

According to MSR, “whether any individual child is entitled to
counsel must be decided case by case.”

Id. at 237.

The Washington Supreme Court reaffirmed this holding in
E.H., which considered whether the reasoning in MSR extended to
all stages of dependency proceedings.

See 427 P.3d at 591–92.

The court concluded that Lassiter, Eldridge, and Gagnon
supported the case-by-case approach adopted in MSR.
P.3d at 593–95.

E.H., 427

The court observed:

Dependency proceedings are not uniform, although each
creates a tension between the State’s ability to
protect children as parens patriae and the fundamental
familial rights of the people who are involved in the
proceedings. In some instances, such as when the
parents agree to the dependency or when the State does
not assume legal or physical custody of the child,
this tension will be lessened. In other instances,
where the dependency is contested or when the State
assumes custody of a child, the tension may be
heightened. Accordingly, the amount of process due to
children in dependency proceedings will vary with each
case.

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Id. at 589.4
I agree with the well-reasoned opinions of the Washington
Supreme Court.

As that court recognized, the logic of Lassiter,

which makes clear that due process should be assessed on a caseby-case basis when it comes to a parent’s right to counsel in a
termination proceeding, extends to a child’s right to counsel in
a dependency proceeding.

Lassiter illustrates that the risk of

erroneous deprivation in these proceedings will vary from case
to case.

See 452 U.S. at 31-32.

Applying the Eldridge factors here, there is no question
that Class Plaintiffs have protected liberty interests,
considering they have been, or are at risk of being, placed in
congregate care facilities where their physical liberty is
restricted.

It is likewise clear that the State has a strong

interest both in the welfare of these children and in “an
accurate and just decision” in dependency proceedings, as well
as “a relatively weak pecuniary interest” in avoiding the cost

Plaintiffs have identified one district court case that came to
the opposite conclusion. See Kenny A. ex rel. Winn v. Perdue,
356 F. Supp. 2d 1353 (N.D. Ga. 2005). In a decision that
predates the Washington Supreme Court cases, the court in Kenny
A. held that children in Georgia’s foster care system have a
right to counsel in all dependency proceedings under the state
due process clause, which is coextensive with the federal due
process clause. Id. at 1359-61. The court, however, did not
address Lassiter or otherwise explain why a case-by-case
assessment of the need for counsel was inadequate to safeguard
the children’s due process rights. See id. Thus, its
persuasive value is limited.
4

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of appointed counsel.

See Lassiter, 452 U.S. at 27, 31.

The

last Eldridge factor, which looks to the risk of erroneous
deprivation and the value of the additional procedures sought,
however, depends on the particular case at hand.

This factor

will turn on the factual and legal complexities of individual
cases, see Lassiter 452 U.S. at 28-31, as well as on whether
there is an existing participant in the proceeding who can
“represent the child’s interests or whose interests align with
the child’s.”

MSR, 271 P.3d at 243-44.

The fact that a dependency proceeding involves an older
disabled child who may be placed in a congregate care facility
does not, by itself, satisfy the last Eldridge factor.

Where

the issues at stake are not complex and the GAL’s views are
aligned with the child’s, the risk of error and the added
benefit from the participation of counsel appear to be low.

On

the other hand, where the GAL’s recommendation goes against the
child’s wishes and the case presents complicated legal or
factual issues, the risk-benefit analysis would likely tip the
scales in favor of appointing counsel for the child.

For those

proceedings that fall along this spectrum, the court’s
discretionary judgment about the need for counsel is
indispensable.

As these examples illustrate, it cannot be said

that the Eldridge factors mandate the appointment of counsel in
all dependency proceedings involving Class Plaintiffs.

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New Hampshire’s statutory scheme adequately protects
children’s right to counsel.

The statute gives the trial judge

discretion to appoint counsel for a child “where the child’s
expressed interests conflict with the recommendation for
dispositional orders of the [GAL].”
C:10, II(a).

N.H. Rev. Stat. Ann. § 169-

Further, the applicable regulations obligate a GAL

to become informed about the child’s wishes and to inform the
court when the child disagrees with the GAL’s recommendation.
See N.H. Code Admin. R. Gal 503.11(a), Gal 504.01(d).

This

carefully calibrated scheme reserves the appointment of counsel
for those children whose interest is not adequately represented
in court.

In those circumstances, the court must apply the

Eldridge factors to the particular case at hand to determine if
due process requires that counsel be appointed to represent the
child.5
In sum, whether plaintiffs are entitled to counsel in their
dependency proceedings must be determined on a case-by-case
basis utilizing the Eldridge factors.

Accordingly, plaintiffs’

There is no allegation that state courts are failing to comply
with these statutory requirements. Instead, plaintiffs merely
allege that only one attorney was appointed to represent a child
in 2019 to support their view that the discretionary system is
deficient. Without information about the number of occasions
when counsel was requested in the same timeframe and the
circumstances of those requests, however, I cannot infer from
the single appointment that state judges are systematically
refusing to grant requests for counsel where the Eldridge
factors would mandate that counsel be appointed.
5

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claim that they have a categorical right to counsel irrespective
of the circumstances of their individual dependency proceedings
fails to state a claim for relief.
B.

Case Planning Requirements under the CWA
Plaintiffs allege that defendants are failing to provide

them with timely and accurate written case plans as required by
§ 671(a)(16) of the CWA.

Defendants do not dispute the

sufficiency of plaintiffs’ factual allegations in support of
this claim.

Instead, they argue that there is no private right

of action to enforce the CWA’s case planning requirements.
The CWA is a federal statute embedded in the Social
Security Act that provides funding to the State for child
welfare, foster care, and adoption assistance.

To receive the

funding, the State must adopt a plan that meets the CWA’s
requirements and receive approval from the Secretary of Health
and Human Services (“Secretary”).

See 42 U.S.C. § 671.

One

required component of such a plan is that the State must develop
a case plan “for each child receiving foster care maintenance
payments.”

§ 671(a)(16).

A case plan is a written document

that must include the child’s records and information about the
plans for the child, such as the prospective placement, the
services the child will receive, and the steps taken toward
stability and eventual permanency.

§ 675(1).

The Secretary has

the authority to withhold funding if the State fails to achieve

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substantial compliance with the statutory requirements and fails
to implement a corrective plan.

See § 1320a-2a.

Section 671(a)(16) does not explicitly provide for a
private right of action.

Plaintiffs argue, however, that this

case planning provision is enforceable through a cause of action
brought under 42 U.S.C. § 1983.
Section 1983 can be used to enforce a provision of a
federal statute only when that provision creates an individual
right.

See Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397

F.3d 56, 72–73 (1st Cir. 2005) (“Not all violations of federal
law give rise to § 1983 actions: ‘the plaintiff must assert the
violation of a federal right, not merely a violation of federal
law.’”) (quoting Blessing v. Freestone, 520 U.S. 329, 340
(1997)) (cleaned up); see also Gonzaga Univ. v. Doe, 536 U.S.
273, 274 (2002) (“It is rights, not the broader or vaguer
benefits or interests, that may be enforced [under § 1983].”)
(cleaned up).

Such a right “must be ‘unambiguously conferred’

by the statutory provision at issue.”

Rio Grande, 397 F.3d at

72–73 (quoting Gonzaga, 536 U.S. at 283).

To determine if

Congress intended to create a federal right, the Supreme Court
has created a three-pronged test that asks whether (1) the
statutory provision contains “rights-creating language,” (2) the
provision has an “individualized” as opposed to an “aggregate
focus,” and (3) the statute contains another enforcement

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mechanism through which an aggrieved person can obtain relief.
Gonzaga, 536 U.S. at 287-90; see Blessing, 520 U.S. at 340-41.6
In a decision that predates Blessing and Gonzaga, the First
Circuit held that the CWA’s case planning provision is privately
enforceable under § 1983.
(1st Cir. 1983).

See Lynch v. Dukakis, 719 F.2d 504

The First Circuit acknowledged in Lynch that

“[t]here will be no section 1983 remedy when (1) the federal law
confers no enforceable right, or (2) Congress has foreclosed the
1983 remedy through the act under consideration.”

Id. at 510

(citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n, 453 U.S. 1, 19 (1981)).

Focusing on the latter

requirement, the court rejected defendants’ argument that
Congress intended for the Secretary’s authority to withhold or
reduce federal funding under § 671(b) to the exclusive remedy
for violations of § 671(a)(16).

See id. at 510-11.

Although it

did not expressly grapple with the issue of whether § 671(a)(16)
created an enforceable right, the circuit endorsed the district
court’s “careful” analysis in that case construing the provision
to provide foster children with the right to a case plan.

See

Gonzaga revised the test announced in Blessing, which required
that (1) Congress intended the provision in question to benefit
the plaintiff, (2) the right is not so “vague and amorphous”
that its enforcement would strain judicial competence, and (3)
the provision is “couched in mandatory, rather than precatory,
terms.” Blessing, 520 U.S. at 340-41. The First Circuit has
applied the revised test as set forth in Gonzaga. See Rio
Grande, 397 F.3d at 73.
6

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id. at 510.

As the Sixth Circuit later observed, “[i]mplicit in

the Lynch decision was the understanding that the [CWA] bestowed
upon children under state supervised foster care the right to an
individualized case plan and a system for case review and that
those children . . . were free to pursue a § 1983 action which
sought to enjoin the state to comply with its mandated system
for case review.”

Scrivner v. Andrews, 816 F.2d 261, 263 (6th

Cir. 1987).
Defendants argue that Lynch is no longer good law in light
of the intervening Supreme Court case law.

I disagree.

As

Lynch recognized, the key question in determining whether a
statute creates a federal right was – and remains – one of
congressional intent.

See 719 F.2d at 510.

Although the

Supreme Court has honed the guidelines that aid that analysis,
the holding in Lynch does not rest on an analytical foundation
that is insistent with the framework set forth in Blessing and
Gonzaga.

Contrary to defendants’ suggestion, Lynch did not

indicate that a right is presumed to exist unless Congress
indicated otherwise.

Instead, the First Circuit held that where

a statute creates a right, there is a presumption that the right
is enforceable under § 1983.

See id.

That presumption, the

court noted, can be rebutted by a showing that Congress has
foreclosed the § 1983 remedy by creating a comprehensive
enforcement scheme.

See id.

The Supreme Court endorsed the

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same presumption in both Gonzaga and Blessing.

See Gonzaga, 536

U.S. at 284 & n.4; Blessing, 520 U.S. at 341.
Defendants’ position is also at odds with the view of the
Ninth Circuit and several district courts that have recognized
the continued viability of Lynch in the aftermath of Gonzaga.
See Henry A. v. Willden, 678 F.3d 991, 1006 (9th Cir. 2012); Sam
M. ex rel. Elliott v. Chafee, 800 F. Supp. 2d 363, 385, 388
(D.R.I. 2011); Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp.
2d 142, 168, 170 (D. Mass. 2011).

As the court in Sam M.

explained, “[t]he First Circuit’s analysis and conclusion in
Lynch, while it precedes Blessing and Gonzaga, is not
inconsistent with either of those cases or their required
examination of Congressional intent.”

800 F. Supp. 2d at 388.

Applying the Gonzaga test demonstrates the soundness of the
holding in Lynch that § 671(a)(16) is privately enforceable.
The case planning provision reads:
In order for a State to be eligible for payments under
this part, it shall have a plan approved by the
Secretary which . . . (16) provides for the
development of a case plan . . . 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).

Rights-creating language “is readily

discernible” in this provision because it “expresses a clear
mandate by using the term ‘shall’” and “discusses how the state

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must distribute benefits to each child.”
Supp. 2d at 171.

Connor B., 771 F.

“Plainly, these directives are both couched in

mandatory terms and are unmistakably focused on the benefitted
class, i.e., foster children.”

Id.

Defendants counter that these directives must be understood
in the context of the prefatory language in § 671(a), which
provides that these requirements are imposed “for a State to be
eligible for payments,” 42 U.S.C. § 671(a), as well as a related
provision requiring mere substantial compliance with § 671(a).
See 42 U.S.C. § 1320a-2a(b)(3)(A).

These provisions, the

argument goes, speak to the State as a regulated participant in
the CWA and contraindicate the language in § 671(a)(16) that
focuses on children as the benefitted class.
Defendants’ argument cannot be squared with an amendment to
the CWA known as the “Suter fix.”

In Suter v. Artist M., the

Supreme Court held that § 671(a)(15), which requires a state to
make “reasonable efforts” to facilitate family reunification, is
not privately enforceable in part because the provision is
contained in a section that lists the prerequisites of a state
plan.

See 503 U.S. 347, 359-63 (1992).

In response, Congress

enacted the Suter fix, which left the ruling as to § 617(a)(15)
in place but “expressed Congress’s intent not to preclude courts
from determining whether other provisions of the [CWA] allowed
private enforcement actions.”

Sam M., 800 F. Supp. 2d at 388.

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Specifically, Congress directed that a provision of the CWA “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.”

42 U.S.C. § 1320a-2.

In

other words, the fact that the case planning provision is a
funding condition imposed on the State as a component of the
State plan cannot negate the rights-creating language in that
provision.

See Henry A., 678 F.3d at 1007.

Thus, the Suter fix

precludes reliance on the very language and context upon which
defendants base their interpretation of § 671(a)(16).
The second Gonzaga factor likewise weighs in favor of an
enforceable right.

By focusing on the needs of “each child” who

has been removed from the family home, as opposed to systemwide
goals, § 671(a)(16) betrays its “individualized” emphasis.
Gonzaga, 536 U.S. at 288.

See

By contrast, provisions with an

aggregate focus “speak only in terms of institutional policy and
practice” and “are not concerned with whether the needs of any
particular person have been satisfied.”

Id. (cleaned up); see

Henry A., 678 F.3d at 1007 (“[T]he reference here to a case plan
‘for each child’ focuses squarely on the protected individual,
rather than an aggregate interest or a regulated entity.”).
Further, the commands of § 671(a)(16) are written in clear and
specific terms, including the case plan definition in § 675(1)
that precisely describes the required contents of each child’s

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case plan.

Thus, “there is no ambiguity as to what the state is

required to do.”

Henry A., 678 F.3d at 1007 (cleaned up).

The case planning provision also satisfies the third
Gonzaga factor because the CWA provides no alternative mechanism
for an aggrieved child to seek relief.

Unlike the statute in

Gonzaga, which allowed individuals to file written complaints
with a federal review board that would trigger an investigation
and potential relief, see 536 U.S. at 289-90, the CWA does not
provide any such procedure.
In short, the Gonzaga factors demonstrate that the case
planning provision confers an individual right.

This gives rise

to a presumption that the right is enforceable via § 1983.
id. at 284 & n.4.

See

Defendants have not rebutted that presumption

by demonstrating congressional intent to preclude the § 1983
remedy.

See id.

The Secretary’s authority to determine whether

the State is in substantial compliance with the CWA’s
requirements, including the case planning provision, does not
amount of a comprehensive remedy that is incompatible with
private enforcement.

See Lynch, 719 F.2d at 510-11.

Accordingly, I deny defendants’ motion to dismiss the CWA claim.7

Defendants also argue that the existence of an express cause of
action to enforce another provision of § 671(a) evinces
congressional intent to preclude private enforcement of other
provisions of the same section. See 42 U.S.C. § 671(a)(18)
(conferring express private right by stating that “neither the
State nor any other entity . . . may . . . delay or deny the
7

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C.

Disability Discrimination Claims
In their third set of claims, plaintiffs allege that

defendants are discriminating against them in violation of the
ADA and the Rehabilitation Act by failing to ensure that they
receive placements and services in the most integrated settings
appropriate to their needs.8

Plaintiffs base their claims on a

regulation known as the integration mandate and a related
methods of administration regulation.

Defendants argue that

both claims fail because disabled children are not segregated
from non-disabled children in DCYF’s custody.

Plaintiffs

counter that the regulations prohibit unnecessarily isolating
disabled children from their communities by placing them in
congregate care settings, irrespective of whether non-disabled
children are also placed there.

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”). As the Ninth Circuit
has explained, however, “because the express cause of action
created for § 671(a)(18) is actually broader than § 1983, it
does not suggest an intent to limit § 1983 enforcement.” Henry
A., 678 F.3d at 1008.
The relevant provisions of the Rehabilitation Act mirror the
ADA, and the parties’ briefing assumes that the claims under the
two statutes are coextensive. Cf. Theriault v. Flynn, 162 F.3d
46, 48 n.3 (1st Cir. 1998) (“Title II of the ADA was expressly
modeled after Section 504 of the Rehabilitation Act, and is to
be interpreted consistently with that provision.”). For ease of
reference, I discuss the claims in terms of the ADA.
8

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1.

Integration Mandate Claims

The ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”

42 U.S.C. § 12132.

The

Department of Justice (“DOJ”) has issued regulations
implementing the ADA’s proscription, including an integration
mandate.

That mandate requires a public entity to “administer

services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.”

28 C.F.R. § 35.130(d).

The preamble to the

regulation defines “the most integrated setting” as “a setting
that enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible.”

28 C.F.R.

Pt. 35, App. B.
A public entity must make “reasonable modifications in
policies, practices, or procedures” to comply with the
integration mandate.

28 C.F.R. § 35.130(b)(7).

obligation, however, is not absolute.

That

The regulations “allow

States to resist modifications” to the extent such modifications
“entail a fundamental alteration” of the offered services and
programs.

Olmstead v L.C. ex rel. Zimring, 527 U.S. 581, 603

(1999) (cleaned up); see 28 C.F.R. § 35.120(b)(7).

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The integration mandate reflects the DOJ’s view “that
unjustified placement or retention of persons in institutions,
severely limiting their exposure to the outside community,
constitutes a form of discrimination based on disability
prohibited by Title II.”

Olmstead, 527 U.S. at 596.

The

Supreme Court has identified “two evident judgments” in the
mandate.

Id. at 600.

The first is that “institutional

placement of persons who can handle and benefit from community
settings perpetuates unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in community
life.”

Id.

The second is that “confinement in an institution

severely diminishes the everyday life activities of individuals,
including family relations, social contacts, work options,
economic independence, educational advancement, and cultural
enrichment.”

Id. at 601.

In Olmstead, the Supreme Court

concluded that the DOJ’s views embodied in the integration
mandate “warrant respect” in part because “Congress explicitly
identified unjustified segregation of persons with disabilities
as a form of discrimination.”

Id. at 598-600 (cleaned up).

Olmstead ultimately “held that the word ‘discrimination’ as used
in § 12132 includes not only disparate treatment of comparably
situated persons but also undue institutionalization of disabled
persons, no matter how anyone else is treated.”

Amundson ex

rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 874

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(7th Cir. 2013) (cleaned up) (citing Olmstead, 527 U.S. at 597–
603).
Following Olmstead, the DOJ released informal guidelines
“directing that the integration mandate be read broadly.”
Steimel v. Wernert, 823 F.3d 902, 911 (7th Cir. 2016).

The

DOJ’s guidance specifies that “[i]ntegrated settings are located
in mainstream society.”

U.S. Dep’t of Justice, Statement of the

Department of Justice on Enforcement of the Integration Mandate
of Title II of the Americans with Disabilities Act and Olmstead
v. L.C. (June 22, 2011).9

Such settings “offer access to

community activities and opportunities at times, frequencies and
with persons of an individual’s choosing; afford individuals
choice in their daily life activities; and, provide individuals
with disabilities the opportunity to interact with non-disabled
persons to the fullest extent possible.”

Id.

In line with the DOJ’s view, the Seventh Circuit has held
that the integration mandate, by its plain terms, must be read
broadly and that the DOJ’s interpretation is entitled to
deference.

See Steimel, 823 F.3d at 911.

The court reasoned

that the mandate is written in “maximalist language” that
“demands the most integrated setting appropriate, which it
defines as allowing interaction with non-disabled persons to the

Available at https://www.ada.gov/olmstead/q&a_olmstead.htm
(last visited Sept. 9, 2021).

9

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fullest extent possible.”

Id. (cleaned up).

The integration

mandate thus “logically applies to all settings, not just to
institutional settings” and “bars unjustified segregation of
persons with disabilities, wherever it takes place.”

Id.

I

agree with this cogent reasoning.
There can be little question that the plain language of the
integration mandate prohibits the State from providing services
to individuals with disabilities in a setting that is not the
most integrated setting appropriate to their needs.

Unless it

could prevail on a fundamental-alteration defense, the State
must administer its foster care services in a manner that
enables plaintiffs to live in such integrated settings.

Thus,

to the extent congregate care facilities are not the most
integrated settings appropriate to plaintiffs’ needs, such
placement runs afoul of the integration mandate.
Defendants respond with a narrow reading of the integration
mandate, arguing that it covers only claims by people who have
been completely segregated from their non-disabled counterparts.
Because both disabled and non-disabled children in DCYF’s legal
custody are placed in congregate care facilities based on bed
availability, the argument goes, these facilities are not
isolating the disabled from the non-disabled on the basis of
their disability.

Rather than engaging with the text of the

mandate or the DOJ’s interpretation, defendants insist that the

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statutory grant of authority to the DOJ to implement the ADA’s
anti-discrimination proscription limits the scope of the
integration mandate.

Specifically, they argue that because the

ADA only prohibits discrimination by reason of disability, the
integration mandate must be construed to apply only to instances
where the disabled are segregated from the non-disabled based on
their disability.
Defendants’ argument has no merit.

As Olmstead recognized,

segregation of the disabled from the community is a core concern
that animates both the ADA and the integration mandate.
U.S. at 600-01.

See 527

Further, defendants cite no authority that has

endorsed their rationale, and I have found none.

Instead, they

merely cite to a litany of cases involving complete segregation
of the disabled where courts recognized viable integration
mandate claims.

See, e.g., Kenneth R. ex rel. Tri-County CAP,

Inc./GS v. Hassan, 293 F.R.D. 254, 259-60 (D.N.H. 2013); Eric L.
ex rel. Schierberl v. Bird, 848 F. Supp. 303, 313-14 (D.N.H.
1994).

But the fact that segregating the disabled from the non-

disabled formed viable integration mandate claims in other cases
does not support defendants’ position that the mandate only
prohibits complete segregation.

Simply put, that complete

segregation is illegal does not mean that a lesser form of
segregation, such as isolating disabled children from their

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communities by placing them in restrictive congregate care
settings, is allowed.

The two are not mutually exclusive.

In light of the plain language of the integration mandate
and a lack of authority that supports defendants’ narrow reading
of the regulation, defendants’ challenge to the integration
mandate claims fails.10
2.

Methods of Administration Claims

In separate counts of their complaint, plaintiffs allege
that defendants are utilizing methods of administration that
cause plaintiffs to live unnecessarily in institutions, isolated
from their communities.

Defendants argue that these claims

should be dismissed because they are duplicative of the
integration mandate claims.
The regulations implementing the ADA prohibit public
entities from utilizing “criteria or methods of administration
. . . that have the effect of subjecting qualified individuals
with disabilities to discrimination.”

28 C.F.R. § 35.130(b)(3).

Courts have recognized methods of administration claims as
distinct causes of action.

See, e.g., Kenneth R., 293 F.R.D. at

259; Day v. District of Columbia, 894 F. Supp. 2d 1, 22-23
(D.D.C. 2012).

Because the integration mandate speaks broadly

To the extent defendants argue that the plain language of the
integration mandate is ultra vires, they have failed to
sufficiently brief this issue, and I decline to take up the
issue on my own.
10

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of administration of services, however, it encompasses methods
of administration that fail to achieve the most integrated
setting appropriate to plaintiffs’ needs, which is the core
allegation in this case.

See 28 C.F.R. § 35.130(d).

The

duplicative nature of those claims, however, is not a basis for
dismissal because plaintiffs are entitled to plead alternative
theories of liability.

See Fed. R. Civ. P. 8(d)(2) (“A party

may set out 2 or more statements of a claim . . . alternatively
. . . .”).
IV.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss
(Doc. No. 29) is granted with respect to plaintiffs’ right to
counsel claim (Count 1) and denied with respect to the remaining
counts.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
September 9, 2021
cc:

Counsel of Record

34