BK v. New Hampshire Dep't of Health & Human Servs.

2011 DNH 157

814 F.Supp.2d 59

BK and SK

v.NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES et al.

Civil No. 09–cv–94–JL.

United States District Court, D. New Hampshire.

Sept. 30, 2011.

Nancy Sue Tierney, Tierney Law Office, Lebanon, NH, for Plaintiffs.

B.K., West Lebanon, NH, pro se.

Karen A. Schlitzer, NH Attorney General's Office, Concord, NH, for Defendants.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

This action presents the question of whether private citizens can enforce certain requirements that federal law imposes on the states as a condition of funding for foster care and adoption services. The plaintiffs claim that, in violation of these requirements, the New Hampshire Department of Health and Human Services (and other defendants) removed the plaintiffs' minor children from their home, placed them in different foster homes from each other, and failed to place them with foster families “who respected and followed [the childrens'] religious, ethnic or cultural background.”

The plaintiffs, proceeding pseudonymously as BK (the childrens' father) and SK (the childrens' mother), and acting on behalf of themselves and their children, are practicing Hindi. Nevertheless, they allege that their children were placed with foster families who served them beef and took them to Christian religious services, in contravention of the plaintiffs' religious beliefs. They claim that this violated federal law requiring, as a condition of federal funding for state child welfare plans, a state's “diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed.” 42 U.S.C. § 622(b)(7). The plaintiffs also claim that the foster care placements violated their free exercise rights under the First Amendment to the Constitution. They further claim that, through the foster placements, the defendants violated other statutory requirements for “reasonable efforts” as a condition of federal funding for state foster programs, including “to preserve and reunify families,” id. § 671(a)(15)(B), and “to place siblings removed from their home in the same foster care,” id. § 671(a)(31)(A). Finally, the plaintiffs claim that the defendants negligently inflicted emotional distress on SK.

The defendants, who include the New Hampshire Department of Health and Human Services, its Division for Children, Youth and Families, one of its district offices, and a number of their employees, have moved to dismiss the plaintiffs' complaint for failure to state a claim.¹ See Fed.R.Civ.P. 12(b)(6). The defendants argue that the statutory funding requirements they are accused of violating do not confer any judicially enforceable rights on the plaintiffs, that the plaintiffs “allege no statutory vehicle for redress” of the claimed First Amendment violations, and that they do not allege sufficient facts to state a claim for negligent infliction of emotional distress. ² This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).

Following oral argument, the defendants' motion is granted in part and denied in part. The defendants are correct that the statutory funding requirements invoked by the plaintiffs, which require state foster care plans to provide for “reasonable efforts” or “diligent recruitment,” are not the sort of clear congressional mandates that create privately enforceable rights and therefore cannot provide the basis for relief here. The defendants are also correct that the plaintiffs have failed to allege a claim for negligent infliction of emotional distress on behalf of SK, because they do not allege that any of the defendants owed her a duty. The defendants are incorrect, though, that the plaintiffs have failed to state a statutory basis for recovering for the defendants' alleged violations of their First Amendment rights, because the amended complaint specifically cites just that vehicle, 42 U.S.C. § 1983.

I. Applicable legal standard

A motion for judgment on the pleadings under Rule 12(c) is evaluated under essentially the same standard as a Rule 12(b)(6) motion for failure to state a claim. See, e.g., Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir.2009). To survive such a motion, the “complaint must contain factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In determining whether the complaint meets that standard, the court must construe the complaint's allegations in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor. Id.; see also Perez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir.2008). The following facts are set forth accordingly.

II. Background

BK and SK, who were born in India, “are firm believers of the Hindu faith and actively practice its teachings,” including treating “the cow as sacred” and not “eating beef, eating from cookware or dishes used to serve or cook beef,” or “residing in households in which beef is consumed.” Their minor children, identified as “MG,” “KK,” and “B,” have been “brought up in a home in which the cow was treated as a sacred animal and they have followed their belief throughout their lives.”

At some point (the amended complaint does not say when), the plaintiffs' children were removed from their home and each was placed with a different foster family. This was accomplished by the DCYF's Claremont District Office, through its director, Mary–Ann Babic–Keith, one of its assistant directors, Mark Rissala, and two of its social workers, Jeszadiah Eisenberg and Susan Holdsworth. The plaintiffs allege that, though their religious faith was well-known to Rissala, Eisenberg, and Holdsworth, the children were placed with foster families who “did not recognize [their] beliefs and [who], in fact, violated them by cooking, consuming, and serving beef.”

In response, SK “offered to cook and supply food for the children” to eat while in foster care, but, the plaintiffs say, Eisenberg “rejected that offer out of hand.” The plaintiffs claim that SK eventually did give food she had prepared to B, who brought it to her foster home only to have her foster parents throw it away, and that those same foster parents sent B to school without lunch on at least one day, “informing her it was too hard to make her a lunch she could eat.”

The plaintiffs further allege that “two of the children were placed in homes where they were taken to a Christian church almost weekly,” including KK, who was placed in the home of “a minister, who had in the past tried to covert [ sic ]” BK. The plaintiffs say that, when they brought this, and their children's exposure to beef while in foster care, to Rissala's attention, he claimed there were no other foster homes available—which the plaintiffs find hard to believe because they “reside in an area of New Hampshire which has residents from a multitude of relgions [ sic ], cultures and ethnicity [ sic ].”

Finally, the plaintiffs allege that SK, in particular, suffered severe emotional distress—requiring her hospitalization—not only over the removal of her children from her home, but through the actions of certain defendants while the children were in their foster placements. In addition to the defendants' failure to intervene in the foster families' alleged violations of the childrens' religious beliefs, as just discussed, the plaintiffs claim that Eisenberg “interfere[d]” with the childrens' visits to SK in the hospital by interrupting their conversations.

The plaintiffs' amended complaint is in six separately numbered counts:

• violation of the First Amendment by placing the children in foster homes where beef was served (count 1);

• violation of the First Amendment by placing two of the children with foster families who took them to Christian religious services (count 2);

• violation of 42 U.S.C. § 1983 by placing the children in foster homes and with foster families who took them to Christian religious services (count 3);

• violation of 42 U.S.C. §§ 671(a)(15)(B) and 671(a)(31) by failing to make reasonable efforts (i) to preserve and reunify the plaintiffs' family and (ii) to place the children in the same foster home (count 4);

• violation of 42 U.S.C. § 622(b)(7) by failing to provide for the diligent recruitment of foster families reflecting the ethnic and racial diversity of children in the state needing foster care (count 5); and

• “negligent and reckless infliction of emotional distress” under New Hampshire law (count 6).

The plaintiffs seek compensatory and punitive damages. They do not seek any prospective relief.

III. Analysis

As noted at the outset, the defendants move to dismiss the plaintiffs' complaint because (A) they allege “no statutory vehicle for redress” of their First Amendment claims, (B) they cannot bring claims under federal statutes that impose requirements on state foster programs receiving federal funding, because those statutes do not create any privately enforceable rights, and (C) they fail to state a claim for negligent infliction of emotional distress. As explained fully infra, the defendants' second and third arguments are correct, but their first argument is not.

A. The First Amendment claims

The defendants argue that counts 1 and 2, alleging violations of the plaintiffs' First Amendment rights, fail to state a claim for relief because “the U.S. Constitution does not provide a private right of action,” and “the plaintiffs have not alleged a statutory vehicle for seeking redress.” Of course, the “statutory vehicle for seeking redress” for “the deprivation of any rights, privileges, or immunities secured by the Constitution” is 42 U.S.C. § 1983, which specifically provides in relevant part that “[e]very...