Advocate, Educate, Litigate

Welcome to Children's Rights' inaugural issue of the Federal Rights Bulletin. Here we address Children's Rights' mission to advocate, educate and litigate to keep the federal courthouse doors open to civil rights litigants who seek to vindicate their federal rights. Children's Rights attorneys have been on the forefront of this effort for 30 years through class action institutional reform litigation targeting city, county and state child welfare systems across the country that harm children in violation of their constitutional and other federal rights. Faced with increasingly aggressive efforts by defendants and a conservative federal judiciary to limit the ability of such civil rights actions to proceed in federal court, Children's Rights seeks to build on the legal gains previously secured while safeguarding them against innovative and unprecedented attacks. Bringing to bear the full weight of our expertise on these issues nationally, Children's Rights spearheads this effort through our active federal litigation docket as well as consulting, co-counseling, or submitting supportive briefs on other cases with the potential to set related legal precedents.

Keeping The Federal Courthouse Doors Open In Active Children's Rights Cases

There are two federalism doctrines that are being used to try to limit children's access to the federal courts: the doctrine of abstention, and the theory of sovereign immunity under the Eleventh Amendment. First, abstention refers to the doctrine that a federal court should abstain from hearing a case, even one involving violations of federal rights, if a ruling from the federal court would interfere with or usurp certain state court proceedings or other state interests. Second, the Eleventh Amendment sovereign immunity doctrine bars lawsuits against the states from being heard in federal court, except under limited circumstances, such as in instances in which the state has given explicit consent to be sued in federal court, or in suits for prospective injunctive relief (not money damages) such as Children's Rights' reform actions. Both these doctrines have been recently applied for the first time by individual federal courts as a bar to foster children being able to pursue their federal claims in federal court. While Children's Rights has successfully appealed any application of the Eleventh Amendment to bar child welfare reform litigation, our petition to have the Supreme Court review the application of abstention in this context is pending.

There have also been repeated efforts to limit the federal statutory rights that foster children can seek to have enforced by the courts. Federal foster care statutes have very specific content and clear definitions of the standards of care to which children are entitled in exchange for federal funding. Most important are the Child Welfare Act provisions of Title IV-E of the Social Security Act, which protect children from languishing in foster care, clarify that children's safety must be paramount, and ensure that basic prophylactic measures (such as giving every foster parent important medical information about the children in their care immediately upon placement) become routine. One of the most significant gains for children in recent years has been the 1997 Adoption and Safe Families Act's amendment of the Child Welfare Act to prevent excessive stays in foster care by demanding that states take action to free children for adoption when they have been in foster care for extended periods of time.

These laws have provided a powerful tool for enforcing children's rights, but often, child welfare officials, when sued for violating these laws, claim the laws do not create rights that are enforceable by the children they were intended to benefit, because Congress did not explicitly state that they do. Although we have won on this issue repeatedly, a new United States Supreme Court decision in 2002 on the issue of when statutes create an enforceable federal right has once again thrown the issue into doubt. (Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)).

NEW MEXICO:
Until an errant abstention decision in a Children's Rights case in New Mexico, the doctrine known as Younger abstention had never been used successfully to prevent children from asserting federal rights in a child welfare reform case. Children in foster care, by virtue of their custodial status and federal and state laws, have a right to periodic state juvenile court reviews of their status. These state court proceedings, however, had not been found to bar children in state foster care custody from pursuing federal claims -- that their governmental custodian was systematically failing to protect them and provide basic services -- in federal court, until 2000 when the district court in New Mexico dismissed a consent decree on abstention grounds. (Joseph A. v. Hartz, No. CIV. 80-623 JC/DJS (D.N.M. March 21, 2000)). On appeal, the Tenth Circuit Court of Appeals upheld dismissal on both abstention and Eleventh Amendment sovereign immunity grounds. (Joseph A. ex rel. Wolfe v. Ingram, 262 F.3d 1113 (10th Cir. 2001)). On a motion to reconsider, however, the Tenth Circuit, in a highly unusual ruling, reversed itself on the Eleventh Amendment sovereign immunity issue and substantially limited the abstention challenge. (Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253 (10th Cir. 2002)). The Tenth Circuit returned the case to the district court for an abstention review of each provision of the consent decree to determine whether there was in fact any interference with state juvenile court proceedings. Earlier this year the district court determined that only one of the consent decree provisions created abstention problems, allowed modification of that provision, and found the rest of the consent decree safe from abstention concerns. (Joseph A. v. New Mexico Dept. of Human Servs., No. CIV 80-623 JC/DJS (D.N.M. Jan. 16, 2003)). The case is now proceeding to enforcement of the decree.

FLORIDA:
Although, ultimately, efforts to block reform litigation in the New Mexico case were defeated, a Florida district court relied on the Tenth Circuit's original abstention and Eleventh Amendment sovereign immunity decision in that case to dismiss the plaintiff foster children's federal statutory and constitutional case outright in another Children's Rights case. This case, brought with a large coalition of Florida advocates, asserts that the Florida child welfare agency harms children through a variety of inadequacies. (Bonnie L. ex rel. Hadsock v. Bush, 180 F. Supp.2d 1321 (S.D. Fla. 2001)). The Eleventh Circuit Court of Appeals recently affirmed the dismissal of all claims based on abstention and the lack of any right of action under the federal foster care statutes. (31 Foster Children v. Bush, 329 F.3d 1255 (10th Cir. 2003)).

Children's Rights, and its local Florida co-counsel, filed a petition for Supreme Court review of the Eleventh Circuit's misapplication of the Younger abstention doctrine on September 2, 2003. Should the Supreme Court choose to review the case, Children's Rights will brief and argue the case and recruit supportive submissions from interested parties challenging such federal court abdication over federal claims.

GEORGIA:
Consistent with court decisions prior to the New Mexico and Florida abstention rulings, the federal district court in Georgia just issued an expansive ruling rejecting the application of either abstention or sovereign immunity theories to limit children's access to federal court to assert federal rights and allowing this Children's Rights case to proceed as a class action. (Kenny A. v. Purdue, 2003 WL 22019593 (N.D. Ga. August 18, 2003)). It also recognized a private right of action under the federal foster care statutes. The court pointedly found the Eleventh Circuit's constrained abstention ruling in the Florida case inapplicable based on a detailed analysis of the injunctive relief being sought by the Georgia plaintiffs and the foster children's inability to pursue their federal claims in their state juvenile court reviews. The court also held that the state had waived any recourse to federal court abstention in any event because the state had affirmatively exercised its right to remove the case to federal court from state court where Children's Rights had originally filed it.

Keeping The Federal Courthouse Doors Open In Other Cases

NEW YORK:
The abstention defense is also appearing in other civil rights litigation. Still pending before the Second Circuit Court of Appeals is a decision on appeal challenging the New York federal district court's granting of injunctive relief to a class of battered women and their children subject to adverse child welfare custody actions by ACS and lack of legal representation in juvenile court proceedings. (Nicholson v. Williams, 203 F. Supp.2d 153 (E.D.N.Y. 2002)). Children's Rights drafted a brief submitted to the Court of Appeals on behalf of our organization and five other civil rights advocacy organizations supporting the district court's rejection of several abstention doctrines as a bar to federal relief. The Second Circuit has just declined to abstain, but certified several questions of state law to New York's Court of Appeals before issuing a final decision on the merits. (Nicholson v. Scoppetta, 2003 WL 22130666 (2d Cir. Sept. 16, 2003)).

So far, vigorous advocacy and extensive legal briefing has succeeded in defeating two recent challenges posed by these federalism doctrines. The outcome in a third, should the Supreme Court take the case, is still unknown, while a fourth case is still pending final resolution in the Second Circuit. What is clear, however, is that these challenges are likely to be raised in future Children's Rights' federal cases and similar civil rights lawsuits, the rulings will affect other efforts to enforce federal rights in federal court, and these cases will involve sophisticated strategizing and legal advocacy that will be spearheaded by attorneys at Children's Rights.

vol. 1, no.1
The Federal Rights Bulletin, Children's Rights, New York, N.Y.