Jeremiah M. v. Crum

695 F.Supp.3d 1060

JEREMIAH M., Hannah M., and Hunter M., by their next friend Lisa Nicolai; Mary B. and Connor B., by their next friend Charles Ketcham; David V., George V., Lawrence V., Karen V., and Damien V., by their next friend Merle A. Maxson; Rachel T., Eleanor T., and Gayle T., by their next friend Rebecca Fahnestock; and Lana H., by her next friend Melissa Skarbek, individually and on behalf of all others similarly situated, Plaintiffs, v. Adam CRUM, Director, Alaska Department of Health and Social Services, in his official capacity; Kim Guay, Director, Office of Children's Services, in her official capacity; Alaska Department of Health and Social Services; and Alaska Office of Children's Services, Defendants.

Case No. 3:22-cv-00129-JMK

United States District Court, D. Alaska

Signed September 28, 2023

Danielle M. Ryman, Elena Marie Romerdahl, Michael Edward O'Brien, Hannah Elizabeth Paton, Perkins Coie, LLP, Anchorage, AK, James J. Davis, Jr., Nicholas Clark Feronti, Northern Justice Project, LLC, Anchorage, AK, Mark W. Regan, Patrick D. Stocks, Disability Law Center of Alaska, Anchorage, AK, Jonathan Borle, Pro Hac Vice, Julia Tebor, Pro Hac Vice, Marcia Robinson Lowry, Pro Hac Vice, A Better Childhood, Inc., New York, NY, for Plaintiffs.

Christopher Robison, Margaret A. Paton-Walsh, State of Alaska, Department of Law Office of the Attorney General, Civil

Division, Anchorage, AK, for Defendants Adam Crum, Kim Guay.

Christopher Robison, Jeffrey G. Pickett, Margaret A. Paton-Walsh, State of Alaska, Department of Law Office of the Attorney General, Civil Division, Anchorage, AK, for Defendants Alaska Department of Health and Social Services, Alaska Office of Childrens Services Inc.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

JOSHUA M. KINDRED, United States District Judge.

Pending before the Court is Defendants' (1) Motion to Dismiss at Docket 23,¹ and (2) Motion for Judicial Notice at Docket 21. Both motions are fully briefed.² The Court heard oral argument on December 20, 2022,³ and thereafter took the matter under advisement. For the reasons stated herein, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This is a putative class action brought by fourteen children ("Plaintiffs" or the "Named Plaintiffs") who are in the custody of Alaska's Office of Children's Services ("OCS").⁴ Defendants are (1) the Alaska Department of Health and Social Services ("DHSS"); (2) Adam Crum, the director of DHSS; (3) OCS; and (4) Kim Guay, the director of OCS.⁵ DHSS is "the principal human services agency of the government of the state of Alaska," and OCS is the subdivision of DHSS that is "responsible for the safety and welfare of children in foster care in Alaska."⁶ In this lawsuit, Plaintiffs seek wide-ranging reform of Alaska's foster care system, alleging that it has become so riddled with dysfunction that it harms the children it is designed to protect. These allegations, when taken as true, describe unacceptable governmental failures affecting society's most vulnerable members. The predominant question at this stage, one that is not easily answered, is to where Plaintiffs may turn for relief.

A. Plaintiffs' Allegations

Plaintiffs assert that the structural failures within Alaska's child welfare system violate their federal statutory and constitutional rights. These failures include high caseworker turnover and unmanageable caseloads, which together "prevent OCS from adequately supervising and providing services to the children in its protective custody."⁷ Plaintiffs allege that foster children in OCS's custody are subjected to frequent destabilizing placement changes.⁸ This placement instability arises in part from OCS's failure to "recruit, reimburse and maintain enough foster homes and other community-based placements."⁹ Plaintiffs claim that OCS caseworkers fail to provide timely, appropriate case plans, and fail to engage in prompt permanency planning.¹⁰ According to the Complaint, OCS does not provide necessary services to foster children, and "[s]ervices pertaining to mental health and substance abuse [] are particularly lacking."¹¹ The lack of appropriate foster homes and inadequate access to services particularly affects children with disabilities, who are often placed in inappropriately restrictive environments.¹² Plaintiffs allege that OCS frustrates the federal and state preference for kinship placements by failing to adequately support kinship foster families through financial assistance and help with licensure.¹³

In particular, Plaintiffs claim that OCS's practices particularly harm Alaska Native children, who are disproportionately represented in the Alaska foster care system.¹⁴ The Complaint contains allegations that OCS overlooks or disregards potential placements within an Alaska Native child's family or community, and places Alaska Native children in non-Native placements, "severing them from their culture and identity."¹⁵

The Complaint details the foster care experiences of the fourteen Named Plaintiffs. These experiences are characterized by frequent placement disruptions, placements in foster homes that are ill-equipped to address the child's needs, institutionalizations, a lack of access to case plans, and inadequate access to services.¹⁶ Plaintiffs bring claims on behalf of themselves and on behalf of a proposed class consisting of "all children for whom OCS has or will have legal responsibility and who are or will be in the legal and physical custody of OCS."¹⁷ In addition, Plaintiffs bring claims on behalf of three proposed subclasses:

(1) Alaska Native children who are or will be entitled to federal Indian Child Welfare Act ("ICWA") protection (the "Alaska Native Subclass");

(2) Children who are or will be in foster care and experience physical, cognitive, or psychiatric disabilities (the "ADA Subclass");

(3) Children who currently reside or will reside in a kinship foster home—the home of a family member—who meet the criteria to receive foster care maintenance payments under 42 U.S.C. § 672 (the "Kinship Subclass").¹⁸

B. OCS and CINA Proceedings

In Alaska, children alleged to be at "high risk of maltreatment or unsafe by their caregiver [are] assessed by OCS."¹⁹ Alaska law requires OCS, after receiving a report of harm to a child, to conduct an initial assessment and determine whether the report is substantiated.²⁰ If the allegation of harm to a child is substantiated, OCS may file a petition for adjudication of a child as a "child in need of aid" or "CINA."²¹ In certain circumstances, OCS may take emergency custody of a child, either with or without a court order.²² The Alaska Superior Court then must hold a temporary custody hearing, which is conducted within 48 hours if OCS took emergency custody of the child, or no later than five business days following the filing of a petition when the child was not taken into emergency custody.²³ The child and parents may be present, and the parents may request a continuance to prepare a response to the allegations.²⁴ At the temporary custody hearing, the Superior Court determines whether probable cause exists for believing the child to be a child in need of aid.²⁵ Within 120 days after a finding of probable cause, the Superior Court must hold an adjudication hearing, at the conclusion of which the court "shall find and enter a judgment that the child is or is not a child in need of aid."²⁶ If the court finds that the child is a child in need of aid, it may order the child committed to the temporary custody of OCS.²⁷ The Superior Court then holds a disposition hearing at which the court may either order the child committed to OCS for placement in an appropriate setting, or order the child released to a parent, adult family member, or other guardian.²⁸ If the Superior Court orders the child committed to OCS custody, it must hold a permanency hearing at least annually during the continuation of foster care to "determine if continued placement, as it is being provided, is in the best interest of the child."²⁹ At permanency hearings, the Superior Court makes written findings as to certain questions, including "whether the child continues to be a child in need of aid"; "whether the child should be placed for adoption or legal guardianship"; and "whether the parent or guardian has made substantial progress to remedy the parent's or guardian's conduct or conditions in the home that made the child a child in need of aid."³⁰

While a child is in OCS custody, OCS has responsibility for the care and control of the child, including "the determination of where and with whom the child shall live," subject to any residual parental rights.³¹ Thus, OCS, not the Superior Court, has the authority to direct placements of foster children in its care.³² OCS is responsible for making "timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement or to enable the safe return of the child to the family home."³³ If OCS proposes to transfer a child from one placement setting to another, "the child, the child's parents or guardian, the child's foster parents or out-of-home caregiver, the child's guardian ad litem, the child's attorney, and the child's tribe are entitled to advance notice."³⁴ A party opposed to the proposed transfer may request a hearing and must prove by clear and convincing evidence that the transfer would be contrary to the best interests of the child for the court to deny the transfer.³⁵

II. DISCUSSION

Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 for violations of their (1) substantive due process rights under the Fourteenth Amendment; (2) rights to familial association under the First, Ninth, and Fourteenth Amendments; (3) rights under the ICWA, 25 U.S.C. § 1901, et seq.; and (4) rights under the Adoption Assistance and Child Welfare Act of 1980 (the "AACWA"), 42 U.S.C. § 672(a).³⁶...