Federal judge lets suit alleging DCS failed to protect children proceed

A lawsuit alleging harm and constitutional violations by the Department of Child Services has survived a motion to dismiss after a federal judge found the children plaintiffs have sufficiently claimed the state failed to protect them.

In an order issued Thursday, the Southern Indiana District Court denied all but one claim argued in the state’s motion to dismiss. The case, Ashely W. and Betty W., minors by Next Friend Denise Durnell, et al. v. Eric Holcomb, in his official capacity as Governor of Indiana, Terry Stigdon, in her official capacity as the Director the Indiana Department of Child Services, and Department of Child Services, 3:19-cv-00129, alleges DCS fails to keep children in the foster care system safe and does not provide needed support services and medical care.

“This is a huge decision,” said Nikki Gray, staff attorney at Indiana Disability Rights. “We see it as an opportunity to move forward with the case, start discovery and learn more about plaintiffs’ stories and how DCS is operating.”

IDR, along with A Better Childhood and Kirkland & Ellis LLP, are representing the 10 foster children who brought the complaint. The Department of Child Services declined to comment on the ruling or say if it intended to appeal, referring, instead, to a statement Stigdon videotaped after the lawsuit was original filed.

The plaintiffs asserted the defendants violated their right to be free from harm under the Due Process Clause of the Fourteenth Amendment. In addition, they claimed their right to familial association under the First, Ninth, and Fourteenth Amendments was violated as well as their right to a developed case plan and case review system under the Adoption Assistance and Child Welfare Act of 1980.

In denying the Adoption Act claim, the court noted “many courts have spilled ink” over determining whether Congress created a federal right when it required a case plan and case review system for each child. The Southern Indiana District ruled Capitol Hill did not create an enforceable right because language in the provision is not clear and unambiguous.

However, on the other allegations, the court found the plaintiffs met their burden of sufficiently stating claims to overcome the motion-to-dismiss standard.

In particular, the court found the subclass of plaintiffs plausibly alleged the defendants violated their rights under the Americans with Disabilities Act and the Rehabilitation Act.

The plaintiffs claimed the defendants did not ensure that those children with disabilities had access to medical and mental health support services. Moreover, the plaintiffs alleged the defendants failed to provide particularized care for each child with a disability.

In its counter-argument, the state asserted the ADA does not require DCS to accommodate “special requests or provide adequate medical treatment.” The defendants continued by describing the plaintiffs’ argument as claiming “they are entitled to different care or placements within (the foster-care system) to accommodate their special needs as disabled children.”

Judge Richard Young was not convinced.

“That argument misses the mark — entirely,” he wrote of the defendants’ assertions. “The whole purpose of the ADA is to allow individuals with disabilities to enjoy the same services, programs, or activities as individuals without disabilities. To that end, Title II prohibits discrimination and requires public entities to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability…’ That may require differential treatment.”

If DCS does not appeal the ruling, Gray anticipates the stay on discovery will be lifted and the plaintiffs will move forward with plans to seek class certification.

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