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E.T. v. George

January 11, 2010

E.T., K.R., C.B., AND G.S., BY THEIR NEXT FRIEND, FRANK DOUGHERTY, ON THEIR BEHALF AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
RONALD M. GEORGE, CHAIR OF THE JUDICIAL COUNCIL OF CALIFORNIA, IN HIS OFFICIAL CAPACITY; WILLIAM C. VICKREY, ADMINISTRATIVE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE COURTS OF THE JUDICIAL COUNCIL, IN HIS OFFICIAL CAPACITY; AND JAMES M. MIZE, PRESIDING JUDGE OF THE SUPERIOR COURT OF THE COUNTY OF SACRAMENTO, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

AMENDED MEMORANDUM AND ORDER

This matter is before the court on defendants Ronald M. George, William C. Vickrey, and James M. Mize's (collectively "defendants") motion to abstain and to dismiss the complaint.

Plaintiffs E.T., K.R., C.B., and G.S., by their next friend, Frank Dougherty, (collectively "plaintiffs") oppose the motions. On November 6, 2009, the court heard oral argument on defendants' arguments relating to justiciability. For the reasons set forth below, defendants' motion to dismiss is GRANTED.

BACKGROUND

This case arises out of plaintiffs' allegations that the caseloads in dependency courts in Sacramento County are so excessive that they violate federal and state constitutional and statutory provisions. Specifically, plaintiffs contend that the overburdened dependency court system frustrates both the ability of the courts to adjudicate and provide children with a meaningful opportunity to be heard and the effective, adequate, and competent assistance of counsel. (Compl., filed July 16, 2009.)

A. Dependency Court Proceedings

Dependency proceedings are conducted to protect the safety and well-being of an abused or neglected child whose parents or guardians cannot or will not do so or who themselves pose a threat to the child. (Compl. ¶ 28.) They commence with an initial hearing, which is held to determine whether a child falls within one of ten jurisdictional bases of the juvenile court. Cal. Welf. & Inst. Code §§ 300, 305, 306, 311, 325 & 332. Dependency courts ultimately conduct an evidentiary hearing regarding the proper disposition of the child. Id. §§ 319, 352, 355 & 358. In most cases, at the disposition hearing, dependency courts "determine what services the child and the family need to be reunited and free of court supervision." Bridget A. v. Superior Court, 148 Cal. App. 4th 285, 302-03 (2d Dist. 2007). However, the courts have a variety of options, from reuniting the family and child to removing the child from parental custody and placing the child in foster care. See generally id. (outlining court options at disposition hearings). After a child is placed under court supervision, subsequent court proceedings and reviews are required every six months. Id.; see Cal. Welf. & Inst. Code §§ 364, 366.21, 366.22.

California Welfare & Institutions Code § 317 requires that counsel be appointed for children in almost all dependency cases. (Compl. ¶ 34.) Specifically, § 317(c) provides that "[i]f a child is not represented by counsel, the court shall appoint counsel for the child unless the court finds that the child would not benefit from the appointment of counsel." This finding must be made on the record. Id. Pursuant to a Standing Order of the Superior Court of the County of Sacramento, third party, court-appointed attorneys are automatically appointed to represent each child who is the subject of dependency proceedings in the county; these attorneys are also appointed as the child's guardian ad litem. (Compl. ¶ 50.)

B. Functions and Funding within the Dependency Court System

The Judicial Council of California is the body responsible for overseeing the statewide administration of justice in the California courts. (Compl. ¶ 9.) As Chair of the Judicial Council, the Honorable Ronald M. George,*fn1 defendant, is responsible for the allocation of the judicial branch budget, including the allocation of relevant funds for courts and court-appointed child representation in dependency court proceedings. (Id.) The Administrative Office of the Courts (the "AOC") is the staff agency of the judicial council and is responsible for California's Dependency Representation, Administration, Funding, and Training ("DRAFT") program. (Compl. ¶ 10.) DRAFT was established in July 2004 by the Judicial Council of California to centralize the administration of court-appointed counsel services within the AOC. (Compl. ¶ 55.) As Administrative Director, defendant William C. Vickrey is responsible for the administration of the AOC. (Compl. ¶ 10.) Finally, the Presiding Judge of the Superior Court, the Honorable James M. Mize, defendant, is responsible for allocating resources within the Sacramento County Superior Court in a manner that promotes the implementation of state and local budget priorities and that ensures equal access to justice and the ability of the court to carry out its functions effectively. (Compl. ¶ 11.) The Presiding Judge also has the authority to assign judges to departments, such as Sacramento County Superior Court's dependency courts. (Id.)

The Superior Court of Sacramento previously paid for the court-appointed attorneys' services pursuant to a Memorandum of Understanding. (Compl. ¶ 55.) In 2008, however, the Superior Court of Sacramento agreed to participate in the DRAFT program. When Sacramento County joined the DRAFT program, the AOC became responsible for paying for the court-appointed attorneys' services. (Id.)

Plaintiffs allege that the staff attorneys for the nonprofit agency, who serve as court appointed counsel for the approximately 5,100 children subject to dependency proceedings in the County of Sacramento, carry as many as 395 cases at a time. (Compl. ¶ 51.) Plaintiffs assert this is more than double the 188 caseload standard established by the Judicial Council and nearly four times the number promulgated by the National Association of Counsel for Children. As a consequence, plaintiffs allege that the appointed lawyers are unable to adequately perform even the minimum tasks required under the law and in accordance with the American Bar Association's ("ABA") standards. Specifically, these lawyers rarely meet with their child clients in their foster care placements, rely on brief telephone contact or courtroom exchanges to communicate, cannot conduct complete case investigations or child-specific legal analysis, virtually never file extraordinary writs or pursue appeals, and rely on overworked county social workers without conducting an informed review of Child Protective Services' ("CPS") placement decisions. (Id.) Further, plaintiffs allege that the high caseload and inadequate salaries of these lawyers lead to high attorney turnover, which exacerbates the problems associated with adequate representation. (Compl. ¶ 52.) Plaintiffs contend that the court-appointed attorneys' unlawful caseloads are due to inadequate funding and assert that if the AOC had followed its own guidelines for DRAFT in funding the court-appointed attorneys, counsel could have met the recommended Judicial Council caseload standards. (Compl. ¶ 56.)

Plaintiffs allege that the County of Sacramento has only five judicial referees, who preside over dependency proceedings, responsible for approximately 5,100 active dependency cases. (Compl. ¶ 29.) Plaintiffs allege that this affords referees roughly two minutes of courtroom time per case. (Id.) Therefore, plaintiffs contend that a foster child appearing in a Sacramento County dependency court with ineffective counsel cannot reasonably expect the judicial referee to serve as a "backstop" and look out for his or her best interests. (Id.)

C. Named Plaintiffs

Plaintiff E.T. is a fourteen-year-old girl who is in her third foster care placement in less than one year. She is a special education student who has been diagnosed with depression. She was assigned a court-appointed attorney in October 2008 and has had two attorneys since then. (Compl. ¶ 59.) Although E.T. has had fourteen court hearings, her attorneys have met with her briefly only three times and have visited her at only one placement. (Compl. ¶¶ 60-61.) They have been unable to stabilize her foster care placements. (Compl. ¶ 61.) Further, they have been unable to investigate her mental health issues to notify the dependency court of any problems. (Compl. ¶ 62.)

Plaintiff K.R. is a thirteen-year-old girl who is in her fifth foster care placement. She suffers from severe behavioral problems, including oppositional defiance disorder. She was assigned a court-appointed attorney in early 1996. When her case was reopened in September 2005, she was again assigned a court-appointed legal representative. K.R. has had six attorneys since then. (Compl. ¶ 63.) However, although her case has had seventeen court hearings since September 2005, K.R.'s attorneys have not visited any of her foster care placements or had any contact with school personnel. (Compl. ¶ 64.) K.R. has been interviewed only once outside of court, by a social worker, and virtually nothing has been done to investigate K.R.'s interests beyond the scope of the dependency court proceedings. K.R.'s attorneys have been unable to file pleadings, motions, responses, or objections as necessary to protect her interests. Further, they have been unable to stabilize her foster care placements, determine whether she requires public services, or secure a proper educational placement. (Compl. ¶ 65.)

Plaintiff C.B. is a seventeen-year-old, developmentally disabled girl, who is in her tenth foster care placement. She was assigned a court-appointed attorney on February 17, 1999, and she has had ten attorneys over the last ten years. (Compl. ¶ 67.) Her attorneys have not visited her in at least seven of her ten placements. She has had five court and administrative hearings, but her lawyers did not meet with her before the majority of those hearings. (Compl. ¶ 68.) C.B.'s attorneys have been unable to file pleadings, motions, responses or objections as necessary to protect her interests. They have done little to investigate C.B.'s needs and emotional health beyond the scope of the juvenile proceedings or to ensure that she is in a stable foster care placement. (Compl. ¶ 68.) Further, they have failed to ensure compliance with an agreement that C.B. be able to see her sibling, who has been adopted, or to make any effort to meet up with her other adult sibling. (Compl. ¶ 69.) They have also been unable to investigate her educational interests to assess whether her interests need to be protected by the institution or other administrative or judicial proceedings. (Compl. ¶ 70.) C.B. will "age out" of the foster case system when she turns 18; her attorneys have not had time to assess whether her psychological or developmental issues require that she be allowed to remain in the system until she is 21. (Compl. ¶ 71.)

G.S. is an eighteen-year-old, emotionally disturbed boy in his tenth foster case placement. He has had eleven attorneys since he first entered the dependency system on May 3, 2001. (Compl. ¶ 72.) G.S. has had 28 court and administrative hearings, but his lawyers did not meet him before the majority of those hearings, including the original detention hearing. (Compl. ¶ 73.) G.S.'s attorneys have been unable to file pleadings, motions, responses or objections as necessary to protect his interests. They have done little to investigate G.S.'s needs and emotional health beyond the scope of the juvenile proceedings or to ensure that he is in a stable foster placement, including failing to visit him in nine of his ten placements. (Compl. ¶ 74.) They have also failed to ensure compliance with court orders, including one that allows him to visit his siblings. (Compl. ¶ 75.) Further, his attorneys have not had time to assess whether his psychological issues require that he be allowed to remain in the system until he is 21 or make efforts relating to his potential imminent transition to life outside the foster care system. (Compl. ¶ 76.)

D. The Litigation

On July 16, 2009, plaintiffs filed suit in this case, by their next friend Frank Dougherty, on behalf of themselves and all others similarly situated, specifically,

All children currently and hereafter represented by court-appointed counsel in juvenile dependency proceedings in the Sacramento County Superior Court. (Compl. ¶ 12.) They assert federal claims under 42 U.S.C. § 1983 arising out of alleged (1) procedural due process violations from excessive attorney caseloads; (2) substantive due process violations from excessive attorney caseloads; (3) procedural due process violations from excessive judicial caseloads; (4) deprivation of rights under the Federal Child Welfare Act ("FCWA"); and (5) deprivation of rights under the Child Abuse Prevention and Treatment and Adoption Reform Act ("CAPTA"). Plaintiffs also assert state law claims arising out of alleged (1) violation of the inalienable right to pursue and obtain safety set forth in Article I, § 1 of the California Constitution for failure to provide fair and adequate tribunals and effective legal counsel; (2) violation of due process as guaranteed in Article I, § 7 of the California Constitution for failure to provide adequate and effective legal representation in dependency proceedings; (3) violation of Welfare and Institutions Code § 317(c); and (4) violation of Welfare and Institutions Code § 317.5(b).

Through this action, plaintiffs seek a declaratory judgment that defendants have violated, continue to violate, and/or will violate plaintiffs' rights as guaranteed by the above constitutions and statutes. Plaintiffs also seek injunctive relief, restraining future violations of these rights, and an order "mandating that [d]efendants provide the additional resources required to comply with the Judicial Council of California and the National Association of Counsel for Children's recommended caseloads for each court-appointed attorney." (Prayer for Relief.)

STANDARD

Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. ...


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