UNITED STATES DISTRICT COURT FOR THE DISTRICT OF …...Case 1:11-cv-01772-RLW Document 20-1 Filed...

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDRE ADGERSON, et. al., ) ) Plaintiffs, ) ) 2011 CV 01772 (RLW)

v. ) )

DISTRICT OF COLUMBIA, et. al., ) ) Defendants. ) ____________________________________)

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants the

District of Columbia, Vincent Gray, and Debra Porchia-Usher (collectively “the District”),

hereby move for dismissal of Plaintiffs’ Amended Complaint. In the alternative, the District

seeks judgment in its favor pursuant to Rule 56. Specifically, Plaintiffs’ Amended Complaint

should be dismissed for the following reasons:

1. Application of the ICPC to non-resident parents is consistent with the text and express purposes of the statute, its implementing regulations, and the case law interpreting the ICPC.

2. Plaintiffs Adgerson and Z.W. do not have standing to seek any relief under their

Complaint because the ICPC was not involved in the Superior Court’s delay in placing Z.W. with Adgerson.

3. Plaintiffs do not have standing to seek prospective equitable relief under the Supreme

Court’s decision in City of Los Angeles v. Lyons.

4. No plaintiff suffered a violation of substantive due process because application of the ICPC to non-resident parents is entirely consistent with the purposes of the ICPC and does not “shock the conscience.”

Case 1:11-cv-01772-RLW Document 20-1 Filed 01/10/12 of 59

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5. No plaintiff suffered a violation of procedural due process because both Mr. Adgerson and Mr. Wilson repeatedly were provided opportunities to be heard regarding placement of their daughters and because the ICPC procedure itself provided them access to normal judicial process.

6. Plaintiffs have not alleged a viable equal protection claim regarding the ICPC because the

District’s membership in the ICPC is rationally related to its interest in safeguarding neglected children.

7. Plaintiffs have not alleged a viable violation of the Social Security Act because the

statutes under which Plaintiffs sue do not confer privately enforceable rights. Additionally, both Adgerson and Wilson received a preference on placement of Z.W. and N.B.; however, neither agreed to accept custody of their children until after formal abuse and neglect proceedings had been instituted in Superior Court. Furthermore, the ICPC establishes appropriate procedures for the orderly and timely placement of children.

8. The Court should decline to exercise supplemental jurisdiction over Plaintiffs’ local law

claims.

9. Plaintiffs’ failure to comply with D.C. OFFICIAL CODE § 12-309 bars their claims arising under the law of the District of Columbia.

10. Plaintiffs’ claims under D.C. OFFICIAL CODE § 4-1301.09a must be dismissed because reasonable efforts were made to keep the Plaintiff children in their homes or facilitate their permanency plan.

11. Plaintiffs’ claims under D.C. OFFICIAL CODE § 16-2311 must be dismissed because Z.W. and N.B. were alleged to be neglected at the time of removal and shelter care was appropriate.

12. Vincent Gray and Deborah Portia-Usher should be dismissed because they have been

sued in their official capacities only, and the District of Columbia is already a named party.

A Memorandum of Points and Authorities in Support of the Motion, a Statement of

Undisputed Material Facts, and a proposed Order are attached hereto.

Respectfully submitted,

EUGENE ADAMS Chief Deputy Attorney General for the District of Columbia ARIEL B. LEVINSON-WALDMAN Senior Counsel to the Attorney General for the District of Columbia


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ELLEN EFROS Deputy Attorney General Public Interest Division /s/ Grace Graham GRACE GRAHAM Chief, Equity D.C. Bar No. 472878

___/s/_Chad Copeland__________________

CHAD COPELAND [982119] Assistant Attorney General, D.C. 441 Fourth Street, N.W., 6th Floor South Washington, D.C. 20001 Telephone: (202) 724-6623 Facsimile: (202) 741-8880 Email: [email protected] s/ Bradford C. Patrick___________ BRADFORD C. PATRICK [1004979] Assistant Attorney General 441 Fourth Street, NW, 6th Floor South Washington, D.C. 20001 Telephone: (202) 724-6627 Facsimile: (202) 741-0599 [email protected]




v. ) )

DISTRICT OF COLUMBIA, et. al., ) ) Defendants. ) ___________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT


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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................. 1 FACTUAL BACKGROUND ................................................................................................ 3

I. The ICPC ....................................................................................................... 3

II. Andre Adgerson and Z.W. ............................................................................. 4 III. Sam Wilson and N.B...................................................................................... 5

STANDARD OF REVIEW ................................................................................................... 9

I. Motion to Dismiss .......................................................................................... 9

II. Motion for Summary Judgment ..................................................................... 10

ARGUMENT ......................................................................................................................... 11

I. Application of the ICPC to non-resident parents is consistent with the text and express purposes of the statute, its implementing regulations, and the case law interpreting the ICPC. ..................................................................... 11 A. Application of the ICPC to non-resident parents is in accordance with

the language and stated purposes of the ICPC and the ICPC’s implementing regulations......................................................................... 11

B. The District of Columbia Court of Appeals’ interpretation of the ICPC already embraces application of the ICPC to non-resident parents; as such, this Court should defer to that interpretation. ................................. 14

C. Applying the Compact to non-resident parents is consistent with the

approach of the majority of state courts to have addressed the issue. ..... 15

D. The approach of the Third Circuit and a minority of states is inconsistent with the language and purposes of the Compact and its implementing regulations......................................................................... 17

II. Plaintiffs’ Standing Problems. ....................................................................... 20


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A. Plaintiffs Adgerson and Z.W. do not have standing to seek any relief

under the Complaint because the ICPC was not involved in the Superior Court’s delay in placing Z.W. with Adgerson. ......................... 21

B. Plaintiffs do not have standing to seek prospective equitable relief under the Supreme Court’s decision in City of Los Angeles v. Lyons. .... 21

III. No plaintiff suffered a violation of substantive due process because

application of the ICPC to non-custodial, non-resident parents is entirely consistent with the purposes of the ICPC and does not “shock the conscience.” ................................................................................................... 22

IV. No plaintiff suffered a violation of procedural due process because both Plaintiff Adgerson and Plaintiff Wilson were repeatedly provided opportunities to be heard regarding placement of their daughters and because the ICPC procedure provided them access to normal judicial process............................................................................................................ 25

V. Plaintiffs have not alleged a viable equal protection claim regarding the

ICPC because no fundamental right is associated with the placement of a child who has been taken into custody because of neglect and because the classification is rationally related to the District’s compelling interest in protecting the welfare of neglected children. ................................................. 28

VI. Plaintiffs have not alleged a viable violation of the Social Security Act

because the provisions invoked by Plaintiffs do not afford them a private cause of action and the District complied with those provisions in any event. .............................................................................................................. 34

VII. The Court should decline to exercise supplemental jurisdiction over

Plaintiffs’ local law claims............................................................................. 39 VIII. Should the Court choose to exercise supplemental jurisdiction over

Plaintiffs’ local law claims, those claims should be dismissed. .................... 40

A. Plaintiffs failed to comply with D.C. OFFICIAL CODE § 12-309. ............. 40


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B. Claims under D.C. OFFICIAL CODE § 4-1301.09a must be dismissed because reasonable efforts were made to keep the Plaintiff children in their homes and facilitate their permanency plan. ................................... 42

C. Plaintiffs’ claims under D.C. OFFICIAL CODE § 16-2311 must be

dismissed because Z.W. and N.B. were not required to be released to their parents and shelter care was appropriate. ........................................ 47

IX. Vincent Gray and Debra Portia-Usher should be dismissed because they

have been sued in their official capacities only, and the District of Columbia is already a named party. ............................................................... 49

CONCLUSION ...................................................................................................................... 50


INTRODUCTION

This memorandum of points and authorities is offered in support of the Motion to

Dismiss or, in the Alternative, Motion for Summary Judgment of Defendants the District of

Columbia, Vincent Gray, and Debra Porchia-Usher’s (collectively “the District”).

Plaintiffs in this case have attacked the District’s ability to ensure that neglected children

over which the District has taken custody are released to safe homes. Plaintiffs challenge the

District’s statutory authority to do so when the home being considered for placement of the child

is outside of the District and is the residence of a child’s biological parent, even where the child

has not been living with that biological parent prior to the placement. In such inter-state

placements, the District must work with other jurisdictions: though the District has tools at its

disposal to investigate proposed homes within the District and the individuals who reside there,

distance and jurisdictional limitations require that for the District to ensure for neglected children

being placed outside of the District that the home is safe, the District work in concert with the

jurisdiction where the child is being placed to obtain an evaluation of the proposed residence for

the child. To facilitate interstate placements while simultaneously retaining confidence that each

child is placed in a home in accordance with the child’s best interest, the District over two

decades ago joined all 50 States and the U.S. Virgin Islands as a member of the Interstate

Compact on the Placement of Children (“ICPC”), and codified the provisions of the ICPC into

law. See D.C. OFFICIAL CODE § 4-1421, et seq. Under the ICPC, the District relies upon the

jurisdiction that will receive the child to provide an initial assessment as to the appropriateness of

the proposed placement, which includes a home study by social work professionals. The

touchstone consideration of this process is the safety of the child.


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Apparently dissatisfied with the speed at which the ICPC safety review process operates,

Plaintiffs’ counsel filed this lawsuit on behalf of two children who previously lived in the

District with their biological mothers and, following neglect proceedings, were placed with their

biological fathers in Maryland. Plaintiffs claim that the District of Columbia Child and Family

Services Agency (“CFSA”) has “arbitrarily” interpreted the ICPC to apply to placements with

such parents. Seeking to convert what is at bottom a policy disagreement with the ICPC and

with the District’s execution of the ICPC’s safety-ensuring provisions into some viable cause of

action, Plaintiffs have alleged a number of purported constitutional and statutory claims. These

claims have no merit.

As an initial matter, the ICPC was not applied to the placement of Plaintiff Z.W. with

Plaintiff Adgerson, and those two plaintiffs accordingly lack standing to pursue this action.

Plaintiffs Wilson and N.B.’s claims similarly fail and require dismissal. The District’s

interpretation of the ICPC, shared by courts in the majority of the jurisdictions who are party to

the ICPC, follows from the ICPC’s mandate that it be construed broadly to effectuate its

purposes, and is further buttressed by the District of Columbia Court of Appeals’ clear

endorsement of authority holding that the ICPC applies to placements of neglected children with

parents. Moreover, the procedures included in the ICPC reasonably approximate those available

to the District, and utilized by the District, when it places a child involved in abuse or neglect

proceedings with a non-offending, absentee parent who resides within the District. Neither the

due process nor equal protection clauses of the Constitution require that the District exempt

biological parents from the child safety protection procedures set forth in the ICPC. Finally,

Plaintiffs’ various statutory claims, arising under federal and local law, are plagued by Plaintiffs’

misreading of statutes that simply have no applicability here. For the reasons detailed below, the


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Court should dismiss the Amended Complaint in its entirety or, alternatively, grant summary

judgment to the District.

FACTUAL BACKGROUND I. The ICPC

The ICPC was drafted in the late 1950s to address concerns about the interstate adoption

and foster care placement of children. See Kimberly M. Butler, Child Welfare-Outside the

Interstate Compact on the Placement of Children-Placement of a Child with a Natural Parent,

37 VILL. L.REV. 896 (1992). The District of Columbia has been a member of the ICPC since

1989. See The Interstate Compact on the Placement of Children Authorization Act of 1989, D.C.

Law 8-30, D.C. OFFICIAL CODE § 4-1421 et. seq.; Defendants’ Statement of Material Facts as to

which there is no Genuine Dispute (“SOMF”) 1. The District of Columbia Court of Appeals

(“DCCA”) has described the ICPC thusly:

The ICPC is a uniform law that governs the placement of children across state lines. It has been adopted by all fifty states, the District of Columbia, and the Virgin Islands. See In Re Miller, 178 Or.App. 271, 36 P.3d 989, 991 (2001). “[I]ntended to facilitate interstate adoption, thereby increasing the pool of acceptable homes for children in need of placement,” B. Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 NEB. L. REV. 292, 293 (1989), the Compact “extends the jurisdictional reach of a party state into the borders of another party state for the purpose of investigating a proposed placement and supervising a placement once it has been made.” Id. at 296. However, the ICPC prohibits a state from sending a child or causing a child to be sent into another state “for placement in foster care or prior to a possible adoption, unless the sending state complies with each requirement set forth in this compact and applicable laws of the receiving state that govern the placement of children.” D.C. Code § 4-1422, Art. III(a). … Of controlling significance, “[t]he child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate authority in the receiving state notifies the sending state, in writing, that the proposed placement does not appear to be contrary to the interests of the child.” Id., Art. III(d).

In re T.M.J., 878 A.2d 1200, 1202 (D.C. 2005).


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II. Andre Adgerson and Z.W.


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At no point was the placement of Z.W. controlled

or resolved by the ICPC. SOMF 24.

III. Sam Wilson and N.B.


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SOMF 43. Additionally, two telephone calls were made to Plaintiff Wilson during the meeting:


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STANDARD OF REVIEW I. Motion to Dismiss

“To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual matter, acceptable as true, to state a claim to relief that is plausible on its face.” Anderson

v. Holder, 691 F. Supp. 2d 57, 61 (D.D.C. 2010) (brackets omitted) (quoting Ashcroft v. Iqbal,

556 U.S. 662 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)) (internal

quotes omitted). A court considering a Rule 12(b)(6) motion must construe the complaint in the

light most favorable to plaintiffs and must accept as true all reasonable factual inferences drawn

from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit

Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994). Where the well-pleaded facts do not permit a

court, drawing on its judicial experience and common sense, to infer more than the “mere

possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief.

Iqbal, 129 S. Ct. at 1950. In evaluating a Rule 12(b)(6) motion to dismiss, a court “‘may

consider only the facts alleged in the complaint, any documents either attached to or incorporated

in the complaint and matters of which [a court] may take judicial notice.’” Trudeau v. Federal

Trade Comm’n, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)).


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Despite the favorable inferences a plaintiff generally receives on a motion to dismiss,

under Rule 12(b)(1), “it is to be presumed that a cause lies outside the federal court’s limited

jurisdiction unless the plaintiff establishes by a preponderance of the evidence that the Court

possesses jurisdiction.” Ramer v. United States, 620 F. Supp. 2d 90, 95-96 (D.D.C. 2009)

(internal citations and quotation marks omitted). Moreover, “[w]hile the complaint is to be

construed liberally, the Court need not accept factual inferences drawn by plaintiffs if those

inferences are not supported by facts alleged in the complaint, nor must the Court accept

plaintiffs’ legal conclusions.” See Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C.

2006). “Plaintiffs’ factual allegations in the complaint . . . will bear closer scrutiny in resolving a

12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wightman-

Cervantes v. Mueller, 750 F. Supp. 2d 76, 78 (D.D.C. 2010) (internal quotation marks and

citations omitted).

II. Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment shall be granted if the record in support of

and in opposition to the motion show that there is no genuine issue of material fact, and that the

moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The mere existence of a factual dispute, alone, is insufficient to bar

summary judgment. Id. Only facts that are capable of affecting the substantive outcome of the

litigation are “material” for purposes of Rule 56. See id.; Laningham v. United States Navy, 259

813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

Further, genuine issues are only those based upon admissible evidence sufficient to

enable a reasonable trier-of-fact to find in favor of the non-moving party. Laningham, 813 F.2d

at 1242-43. Hearsay evidence may not be used to support or oppose a summary judgment


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motion. See Gleklen v. Democratic Cong. Campaign Comm., Inc., 339 U.S. App. D.C. 354, 199

F.3d 1365, 1369 (D.C. Cir. 2000). Additionally, plaintiffs may not create a genuine issue of fact

by placing conclusory allegations or statements of inference, conjecture, speculation, or

suspicion in their declarations. See Lujan v. National Wildlife Fed., 497 U.S. 871, 888 (1990).

ARGUMENT

I. Application of the ICPC to non-resident parents is consistent with the text and express purposes of the statute, its implementing regulations, and the case law interpreting the ICPC.

The question central to Plaintiffs’ lawsuit is whether the ICPC applies when the Superior

Court, in connection with neglect proceedings, places a child with a non-custodial parent who

does not reside in the District of Columbia.3

A. Application of the ICPC to non-resident parents is in accordance with the language and stated purposes of the ICPC and the ICPC’s implementing regulations.

An examination of the ICPC’s language, its stated

purposes, its implementing regulations, and relevant case law leads to the inescapable conclusion

that it does so apply.

The ICPC establishes a framework that enables states to effectuate placement of children

over which the state has custody beyond the state’s jurisdictional lines, while ensuring such

placements are in accordance with each individual child’s best interests. The ICPC expressly

provides for a liberal construction of its terms in furtherance of four stated purposes. D.C.

OFFICIAL CODE, Article X. First, the ICPC is designed to give each child “the maximum

opportunity to be placed in a suitable environment with a person or institution that has

appropriate qualifications and facilities to provide necessary and desirable care.” D.C. OFFICIAL

3 The most recent Regulations promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children define a “non-custodial parent” as “a person who, at the time of the commencement of court proceedings in the sending state, does not have sole legal custody of the child or physical custody of a child.” AAICPC Regulation No. 3(4)(42) (2011 ed.), Ex. 29.


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CODE § 4-1422, Article I(1) (emphasis added). Second, the ICPC provides the receiving

jurisdiction a “full opportunity to ascertain the circumstances of the proposed placement in order

to promote full compliance with applicable requirements for the protection of the child.” D.C.

OFFICIAL CODE, Article I(2). Third, it is designed to provide the sending jurisdiction with “the

most complete information on the basis of which to evaluate a projected placement before it is

made.” D.C. OFFICIAL CODE § 4-1422, Article I(3) (emphasis added). Finally, the ICPC is

intended to promote cooperation between jurisdictions in meeting their obligation to care for

children. D.C. OFFICIAL CODE § 4-1422, Article I(4).

Under Article III of the ICPC, the Compact’s procedures are generally applicable to

interstate placements of children in foster care or in potential adoption cases. The outer limits of

the ICPC are set forth in Article VIII of the Compact, which exempts cases where “[a] child is

sent or brought into a receiving state by his parent” or other prescribed individual. Contrary to

the Amended Complaint’s insinuation, Article VIII contains no exemption for cases where a

child is sent or brought by a state court or a state agency to the child’s parent or relative; it

exempts only those cases where the child is already in the custody of the parent or other relative

at the time the child crosses jurisdictional lines.

Consistent with the purposes and mandated broad construction of the statute, the District

applies the Compact to mean that where the child in question has been referred to the CFSA and

has become a ward of the District of Columbia, the subsequent placement is not made by an

individual but, rather, is made by the state. In such cases, the Compact's procedures must be

applied for an interstate placement with a family member, including a biological parent, who has

less than full custodial or guardianship rights over that child. This reading is expressed in the

District of Columbia CFSA Policy Statement, which has long reflected that the Compact applies


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to “Placements with a parent or relative (by blood or adoption) authorized by the Superior

Court.” CFSA ICPC Policy Statement, Ex. 27, at Part IV.; SOMF 2.

Moreover, the District’s reading of the Compact’s text and purposes is in accordance with

the regulations promulgated by the Association of Administrators of the Interstate Compact on

the Placement of Children (“AAICPC”), the national association charged under ICPC Article VII

with administering the Compact and developing rules and regulations to implement the ICPC.

Under the version in effect at the time of the neglect proceedings at issue here, Regulation 3

expressly provided that:

“Placement” as defined in Article II(d) includes the arrangement for the care of a child in the home of his parent, other relative, or non-agency guardian in a receiving state when the sending agency is any entity other than a parent, relative, guardian or non-agency guardian making the arrangement for care as a plan exempt under Article VIII(a) of the Compact.

ICPC Regulation No. 3(1) (2001 ed.), Ex. 28. It further included court-ordered placements with

parents as within Article III’s definition of the term “foster care,” distinguishing those situations

where 24-hour a day care is provided by a parent “by virtue of the parent-child relationship.”

ICPC Regulation No. 3(5) (2001 ed.), Ex. 28. Also, the 2001 version of Regulation 3 affords the

Family Court discretion to apply the ICPC, providing that:

The compact does not apply whenever a court transfers the child to a non-custodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child.

ICPC Regulation No. 3(6)(b) (2001 ed.), Ex. 28. Although AAICPC has since amended

Regulation No. 3 following the events at issue in this action, the version of Regulation No. 3 that

went into effect on or about October 1, 2011, continues to endorse the view that the ICPC applies

to non-custodial parents, and provides flexibility to the Family Court in determining to apply it.

See ICPC Regulation Nos. 3(2)(a)(3), 3(3)(a), and 3(3)(b) (effective October 1, 2011), Ex. 29.


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B. The District of Columbia Court of Appeals’ interpretation of the ICPC already embraces application of the ICPC to non-resident parents; as such, this Court should defer to that interpretation.

In the District of Columbia, the question of whether the ICPC applies to placement with a

non-resident parent has not been explicitly decided by the District of Columbia Court of Appeals

(“DCCA”) or any federal court in the District of Columbia; however, the DCCA’s decision in In

re T.M.J., 878 A.2d 1200 (D.C. 2005), strongly suggests that the Court interprets the ICPC as

applying to non-resident parents. T.M.J. involved a dispute between an adoptive mother who

had previously been the child’s foster parent and the child’s maternal grandmother. Id. at 1201.

The grandmother was a Maryland resident who had also sought custody of the child. Id. The

only question on appeal was whether the ICPC barred placement of the child with the

grandmother, and the DCCA affirmed that it did. Id. at 1202.

In making its decision, the DCCA enthusiastically embraced authority from other

jurisdictions—authority that is discussed more fully below—that unambiguously applies the

ICPC to non-resident parents. See T.M.J., 878 A.2d at 1204 (quoting Arizona Dep’t of Economic

Sec. v. Leonardo, 22 P.3d 513, 518 (Ariz. 2001) (“[W]hen the sending agency is a child

protective services agency acting through the state, as it is here, and the child is [proposed to be]

placed with a . . . family member [parent] who does not have full custodial rights to or

guardianship of the child, the ICPC applies to that out-of-state placement.”); and citing In re

Miller, 36 P.3d 989, 992-93 (Or. App. 2001) (holding that the ICPC applied because “[s]o long

as the child remained a ward of the court, neither [the guardian] nor the child’s parents could

have achieved the out-of-state placement without the juvenile court’s active assistance and tacit

approval of [the guardian’s] proposal for placement.”)).


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Although the DCCA’s decision in T.M.J. did not involve a non-resident parent, the

DCCA’s reliance on these particular cases cannot be easily disregarded on this basis. The

DCCA elected to quote the Arizona and Oregon courts’ language back-to-back for the principle

that the ICPC in the District of Columbia extends to non-resident family members when the child

is a ward of the state. It is further worth noting that the language quoted from the Arizona court

actually concerned a parent. As a result, the DCCA chose to use a quotation where the word

“family member” meant parent. Thus, T.M.J. should fairly be read as including non-resident

parental application for the ICPC. Because federal courts in the District of Columbia generally

“defer to the District of Columbia Court of Appeals on questions of statutory interpretation”

involving the D.C. Code unless the court “detects an egregious error[,]” United States v.

Edmond, 924 F.2d 261, 264 (D.C. Cir. 1991), this Court should defer to the DCCA’s

interpretation of the ICPC in a manner consistent with Arizona, Oregon, and the majority of

jurisdictions and apply the ICPC to placements with non-resident parents.

C. Applying the Compact to non-resident parents is consistent with the approach of the majority of state courts to have addressed the issue.

Over the past few decades, the majority of courts that have addressed this question have

decided that the ICPC does, in fact, apply to placement with a non-resident parent so long as the

child remains subject to the jurisdiction of the family or juvenile court. The Supreme Court of

Delaware, for example, addressed the issue in the context of proceedings that terminated the

parental rights of both the resident mother and the non-resident fathers of her children who failed

to cooperate in the ICPC process. Green v. Div. of Family Servs., 864 A.2d 921 (Del. 2004).

The non-resident fathers in Green challenged Delaware’s application of the ICPC to them,

relying in large part, as Plaintiffs are expected to do here, on the Third Circuit’s decision in


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McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991).4

Similarly, in Arizona Dep’t of Economic Sec. v. Leonardo, 22 P.3d 513 (Ariz. 2001), the

Court of Appeals of Arizona found that a Family Court had exceeded its jurisdiction in

circumventing the ICPC in the placement of a neglected child with his non-resident mother after

the child had been removed from the resident father’s custody. There, the court held that, due to

Arizona’s participation in the AAICPC under Article VII, AAICPC’s Regulations, including

Regulation No. 3, are binding so long as the Regulation did not conflict with the ICPC’s policy

and purpose. Id. at 519. Reading Regulation No. 3 in conjunction with the Compact and its

purposes, the Leonardo court found no facial conflict between the two, specifically rejecting

McComb’s contrary construction as “strict and narrow” and in tension with the ICPC’s purposes.

Id. at 518-19. Because Arizona had agreed to be bound by the Regulations promulgated by the

AAICPC, the Leonardo court held that Arizona was obligated to apply the ICPC to non-resident

parents. Id. at 518-19.

Green, 864 A.2d at 926-28.

Notwithstanding McComb, the Green court, giving effect to the liberal construction mandated by

the ICPC and relying upon the express language AAICPC Regulations, found that the ICPC

applies to non-resident parents. Id. at 928.

Massachusetts has also determined that the ICPC applies to out-of-state parents. See,

e.g., In re Adoption of Warren, 693 N.E.2d 1021 (Mass. App. Ct. 1998). In Warren, a non-

resident father sought custody of his son, who had been removed from his resident mother’s

custody by the state. The Family Court, relying upon an ICPC home study from an outside

jurisdiction, found that placement with the father was contrary to the child’s interests. Id. at

1023-24. On appeal, the Warren court rejected the father’s contention that Article VIII

exempted parents from the ICPC, holding that Article VIII only exempts placements between 4 As discussed herein, the McComb court read the ICPC restrictively to deny its application to non-resident parents.


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certain relatives and that the ICPC continues to apply where the child is in the custody of the

state. Id. at 1024.

Other jurisdictions have followed suit, determining that the ICPC applies to placement

with a non-resident parent if the child is subject to the jurisdiction of a state court. See In re

Tumari W., 65 A.D.3d 1357, 1360, 885 N.Y.S.2d 753, 755 (2009) (collecting cases) (“New York

State is squarely among those jurisdictions which apply the ICPC to a non-custodial parent.”);

H.P. v. Dep’t of Children and Families, 838 So.2d 583, 586 (Fla. App. Ct. 2003) (“[W]hen a

court takes jurisdiction and determines who is to receive a child, who retains the authority to

continue the child with that custodian or to remove the child, and when the court may prescribe

supervision or other conditions, the child’s living status is that of a placement. In such

circumstances, the parent’s situation is not custody or possession as a matter of parental right,

but rather it is the same as the position of a foster parent. In both instances they are caregivers

only because of the authority conferred to them by the state acting through the court. When a

child is with a caregiver under these circumstances, the child is in foster care.”) (citing Dep’t of

Children & Families v. Benway, 745 So.2d 437 (Fla. App. Ct. 1999)); In re T.N.H., 70 S.W.3d 2

(Mo. App. Ct. 2002); K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So.2d 907

(Miss. 2000); D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584 (Ala. Civ. App. 1999);

State ex rel. Juvenile Dep’t of Clackamas County v. Smith, 811 P.2d 145 ( Or. App. Ct. 1991); In

re J.H., 587 A.2d 1009 (Vt. 1991).

D. The approach of the Third Circuit and a minority of states is inconsistent with the language and purposes of the Compact and its implementing regulations.

As Plaintiffs are expected to point out, the Third Circuit, in McComb v. Wambaugh, held

that ICPC does not apply to non-resident parents. 934 F.2d at 482. Notably absent from the


18

McComb opinion, however, is any mention of the ICPC’s four purposes identified in ICPC

Article I. Nor does McComb discuss or apply ICPC Article X, which mandates that the Compact

be interpreted liberally to effectuate those purposes. The Third Circuit similarly disregarded an

earlier version of AAICPC Regulation No. 3—predating both the 2001 and the 2011 regulations

annexed to this motion—on the grounds that it implicated all placements with out-of-state

parents, even “a situation where a child is returned to parental custody.” Id. at 481 (emphasis

added). The Third Circuit viewed this expansive approach as beyond Article II(d)’s definition of

“placement,” which includes “placements in foster care or as a preliminary to a possible

adoption,” and held that the earlier version of Regulation No. 3 was inconsistent with the

Compact’s text. Id. A minority of jurisdictions have followed McComb. See, e.g., In re

Dependency of D.F.-M., 236 P.3d 961 (Wash. Ct. App. 2010); Matter of Alexis O., 959 A.2d 176

(N.H. 2008); Arkansas Dep’t of Human Servs. v. Huff, 65 S.W.3d 880 (Ark. 2002); State of New

Jersey Div. of Youth & Family Servs. v. K.F., 803 A.2d 721 (N.J. 2002); Tara S. v. Superior

Court of San Diego County, 17 Cal. Rptr. 2d 315 (Cal. Ct. App. 1993).

Following the Third Circuit’s decision in McComb in 1991, however, the AAICPC

amended Regulation No. 3 to provide the Family Court discretion in applying the ICPC to out-

of-state parents, necessarily narrowing the Compact’s scope. See Arizona Dep’t of Economic

Sec. v. Leonardo, 22 P.3d at 521(noting that the amendments have made Regulation No. 3 “more

consistent” with the language of the Compact). Under this amended version of Regulation No. 3,

a Family Court need not apply the ICPC to out-of-state parents when “the court does not have

evidence before it that such parent is unfit, does not seek such evidence, and does not retain

jurisdiction over the child after the court transfers the child.” ICPC Regulation No. 3(6)(b) (2001

ed.), Ex. 28. Notwithstanding this individualized discretion, the courts following the majority


19

approach choose to apply the ICPC to out-of-state, non-custodial parents in most cases. See

supra, at 16-17. The impact of these amended regulations has been summarized thusly:

These regulations recognize that a non-custodial parent … may have had no involvement in the child's care prior to the time that the child is removed from the care of the other parent. In those circumstances, there may be a question as to the non-custodial parent’s fitness to take over full responsibility for the child. In addition, public agencies in the receiving state may need to provide continuing assistance to, and supervision of, the child after placement. Thus, many of the same concerns that must be addressed before out-of-state placement with a “substitute” or foster parent, are also present with a non-custodial natural parent. By contrast, where the fitness of a non-custodial parent is not in doubt, and no continuing supervision will be necessary, the regulations authorize a court to hold the ICPC inapplicable to that parent.

Green v. Div. of Family Servs., 864 A.2d at 928. Because the Third Circuit relied upon an

earlier, more expansive version of the Regulation, it, of course, did not have occasion to consider

the 2001 amendments and the increased discretion afforded to courts in their application of the

ICPC to parents. See Leonardo, 22 P.3d at 521. Under the amended regulations, a court may

choose not to seek evidence of fitness in the example proffered by McComb of a child who is

merely returning to his or her parents’ custody.

As earlier noted, McComb failed to give any weight to the ICPC’s express instruction that

courts should construe the ICPC liberally to effectuate its purposes. See D.C. OFFICIAL CODE §

4-1422, Article X. When read against that backdrop, it is entirely appropriate for the ICPC to

include placement with a non-custodial, non-resident parent. See Green, 864 A.2d at 927

(rejecting the approach of the Third Circuit proposed here by Plaintiffs as an inappropriately

narrow reading of the ICPC); Leonardo, 22 P.3d at 521 (same). More importantly:

Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately. The ICPC provides an effective mechanism for gleaning that evidence and for maintaining a watchful eye over the placement.

Dep’t of Children and Families v. Benway, 745 So.2d 437, 439 (Fla. App. 1999).


20

Plaintiffs’ approach would unnecessarily bind the Superior Court’s hands in facilitating

safe placements for the District’s neglected children, which is patently contrary to the purposes

of the ICPC and good public policy. Because the ICPC mandates a liberal construction to

effectuate its purposes, and because District of Columbia courts should not be required to

relinquish neglected children into a home without any indication that the home is a safe and

appropriate place for the removed child, the statute can and should be applied to placements with

non-custodial, non-resident parents such as Plaintiffs Adgerson and Wilson.

II. Plaintiffs’ Standing Problems

“Without standing, there is no subject matter jurisdiction.” Prosser v. Fed. Agric.

Mortgage Corp., 593 F. Supp. 2d 150, 155 (D.D.C. 2009). “Standing represents a jurisdictional

requirement that remains open to review at all stages of the litigation.” Natl. Org. for Women

Inc., v. Scheidler, 510 U.S. 249, 255 (1994). “[T]he court has an independent obligation to

assure that standing exists.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (citing

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Plaintiff, as the party

invoking the Court’s jurisdiction, carries the burden to establish standing. Id. at 493 (citation

omitted).

The standing doctrine encompasses “both constitutional limitations on federal-court

jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (U.S.

1975). To establish the “irreducible constitutional minimum of standing,” a plaintiff must allege

the following: (1) an “injury in fact” which is “(a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and the

conduct complained of”; and (3) a likelihood “that the injury will be redressed by a favorable

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks


21

and citations omitted). A “particularized” injury is defined as one that “affect[s] the plaintiff in a

personal and individual way.” Id. at 561 n.1. As a result, Article III of the United States

Constitution “requires the party who invokes the court’s authority to ‘show that he personally

has suffered some actual or threatened injury as a result of the putatively illegal conduct of the

defendant.’ ” Valley Forge Christian College v. Americans United for Separation of Church and

State, 454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S.

91, 99 (1979)) (emphasis added).

A. Plaintiffs Adgerson and Z.W. do not have standing to seek any relief under their Complaint because the ICPC was not involved in the Superior Court’s delay in placing Z.W. with Adgerson.

The claims of Plaintiffs Adgerson and Z.W. must be dismissed on standing grounds

because placement of Z.W. did not implicate the ICPC. As detailed in the attached declaration

of Assistant Attorney General Catherine Ferrando, who filed neglect proceedings on behalf of

Z.W., the District never took a position in opposition to placement with Mr. Adgerson because of

the ICPC. SOMF 21-24. As a result, to the extent that Adgerson or Z.W. were injured by the

actions of the District—which it strongly disputes—that injury had a cause other than application

of the ICPC. Moreover, because the Superior Court elected to resolve placement of Z.W.

without invoking the ICPC, neither Mr. Adgerson nor Z.W. state a claim or a controversy for this

Court to decide with respect to the proper application of the ICPC. Indeed, under the facts here,

any such decision would only be advisory, which is not a function of the Court. Thus, pursuant

to Rule 12(b)(1), their claims should be dismissed.

B. Plaintiffs do not have standing to seek prospective equitable relief under the Supreme Court’s decision in City of Los Angeles v. Lyons.

As part of the relief requested in their Complaint, Plaintiffs seek relief to “ensure

compliance with [Defendants’] legal obligations to Plaintiffs[.]”. See Complaint at 20. Plaintiffs


22

do not have standing to seek the requested equitable relief because courts lack jurisdiction over

claims to provide such relief absent a real and immediate danger that Plaintiffs will be subject to

the challenged conduct again in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 101

(1983) (dismissing claims for equitable relief based on lack of real and immediate danger that the

plaintiff would be subjected again to an alleged policy of illegal chokeholds by the Los Angeles

Police Department); Fair Employment Council of Greater Wash., Inc., v. BMC Marketing Corp.

28 F.3d 1268, 1273-74 (D.C. Cir. 1984) (finding absence of standing even where plaintiffs

referred to the possibility of future injury).

Plaintiffs’ complaint is entirely devoid of any allegations that would provide standing to

seek the requested prospective equitable relief. Both Plaintiffs Adgerson and Wilson concede

that have already been granted placement of Z.W. and N.B. See Complaint at ¶¶ 18, 19, 31, 50.

As such, there is no reason to believe that Plaintiffs are in any immediate danger of facing

circumstances implicating their legal obligations as fathers or that they will be subject to the

ICPC’s provisions in the foreseeable future. Because they have failed to allege any likelihood

that they would suffer future injury, Plaintiffs do not have standing to seek the requested

equitable relief, and their request for relief to “ensure compliance with [Defendants’] legal

obligations to Plaintiffs” should be dismissed.

III. No plaintiff suffered a violation of substantive due process because application of the ICPC to non-custodial, non-resident parents is entirely consistent with the purposes of the ICPC and does not “shock the conscience.”

Count I of the Complaint purportedly alleges a substantive due process violation based on

application of the ICPC under the Fifth Amendment and the Fourteenth Amendment of the


23

Constitution.5

It is beyond dispute that parents have a liberty interest in the care, custody, and

management of their children. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71

L.Ed.2d 599 (1982). But it is also beyond dispute that this right “is not absolute[.]” See, e.g.,

Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d 505, 510 (8th Cir.1995). While “a parent’s

interest in the care, custody and companionship of a child is a liberty interest that may not be

interfered with in the absence of a compelling state interest, the welfare of a child is a compelling

state interest that a state has not only a right, but a duty, to protect.” In re Marilyn H., 851 P.2d

826, 833 (Cal. 1993) (citations omitted).

The Constitution’s Due Process Clause contains a “substantive component” that

“protects individual liberty against certain government actions regardless of the fairness of the

procedures used to implement them.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112

S. Ct. 1061, 117 L. Ed. 2d 261 (1992) (internal quotation omitted). Here, Plaintiffs have alleged

that the District violated their substantive due process rights merely because the Superior Court

followed the prescriptions of the ICPC. See Complaint at ¶ 59. There is no viable substantive

due process claim presented, however, because compliance with the ICPC does not rise to the

level of egregious governmental misconduct. See Silverman v. Barry, 845 F.2d 1072, 1080

(D.C. Cir. 1988) (“Only a substantial infringement of state law prompted by personal or group

animus, or a deliberate flouting of the law that trammels significant personal or property rights,

qualifies for relief under § 1983.”).

“To assert a substantive due process violation, … the plaintiff must also show that the

District of Columbia’s conduct was ‘so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.’” Butera v. District of Columbia, 235 F.3d 637, 651 (D.C.

5 As a preliminary matter, the Fourteenth Amendment does not apply to the District of Columbia, so any claim under pursuant to it must be dismissed. See Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (holding that the District of Columbia is not a “State” for purposes of the Fourteenth Amendment).


24

Cir. 2001) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). Thus, “a

[substantive due process] plaintiff suing under § 1983 must prove that his injury was due not

merely to the law’s delay and [the government’s] errors but to defendant’s deliberate disregard

of the state’s fundamental process.” Silverman, 845 F.2d at 1079 (emphasis in original) (quoting

Roy v. City of Augusta, 712 F.2d 1517, 1524 (1st Cir. 1983)); see also Butera, 235 F.3d at 651

(“[C]onduct intended to injure in some way unjustifiable by any government interest is the sort

of official action most likely to rise to the conscience-shocking level.”). It simply cannot be said

that application of the ICPC to non-resident parents rises to such a high level of disregard.

Courts who have addressed the issue have consistently held that application of the ICPC

does not violate fundamental due process. See Green v. Div. of Family Servs., 864 A.2d at 928

(holding that “the placement requirements of the ICPC do not violate the parents’ due process

rights.”); Arizona Dep’t of Econ. Sec. v. Leonardo, 22 P.3d at 522-23 (Ariz. Ct. App. 2001)

(“[W]e summarily reject [the] claim that application of the ICPC to [a parent] violates her due

process rights, even if she is ‘deprived’ of her children for the relatively short period of time it

may take a Texas agency to conduct a home study and accept the placement[.]”); In re Adoption

of Yannis, 938 N.E.2d 904 (Mass. App. Ct. 2010) (finding no violation of due process rights

based on a delay in the ICPC process, even though the Court found that the social service agency

had, in fact, abused its discretion in delaying an expedited ICPC request.). Even in the state of

California—whose courts have interpreted the ICPC as inapplicable to non-resident parents—

delay resulting from an ICPC investigation does not violate due process because the Compact is

undeniably a component of the court’s “obligation to seek whatever additional information it

could obtain before making a decision to release the child[.]” In re M.H., Nos. G044807,

G045212 (Super. Ct. No. DP0020310), 2011 WL 3923546, at *8 (Cal. Ct. App. Sept. 7, 2011).


25

Moreover, outside of the ICPC context, it is well-established that temporary interruption

in visitation rights—which is not alleged to have occurred during any period of ICPC

applicability here—does not deprive a noncustodial parent of a liberty interest sufficient to

support a substantive due process claim. See Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir.

1996) (holding no due process violation arose from an interruption in the right to visitation, even

assuming the governmental officials deviated from the proper procedure); Wise v. Bravo, 666

F.2d 1328 (10th Cir. 1981) (finding no due process violation stemming from an interruption of

the father’s visitation after police incident).

As a result, Plaintiffs do not present a viable substantive due process claim. Compliance

with the ICPC ensures that the sending and receiving states cooperate to place children in a good

environment. See In re Adoption of A.M.M. and A.N.M., 949 P.2d 1155, 1158 (Kan. 1997) (“The

purpose of the ICPC is to protect the interests of children who fall within its parameters.”)

Actions taken and overseen by the Superior Court of the District of Columbia in furtherance of

the Compact’s obligations cannot be said to “shock the conscience,” even if those obligations

involve a temporary delay of custody to the non-resident parent. Count II of Plaintiffs’

Complaint must be dismissed.

IV. No plaintiff suffered a violation of procedural due process because both Plaintiff Adgerson and Plaintiff Wilson were repeatedly provided opportunities to be heard regarding placement of their daughters and because the ICPC procedure provided them access to normal judicial process.

Count II of the complaint purports to assert a claim for violation of Plaintiffs’ procedural

due process rights under both the Fifth and Fourteenth Amendments to the United States

Constitution.6

6 Again, the Fourteenth Amendment does not apply to the District of Columbia, so any claim pursuant to it must be dismissed. See Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (holding that the District of Columbia is not a “State” under the Fourteenth Amendment).

Citing Santosky v. Kramer, 455 U.S. 745, 760 (1982), Plaintiffs assert that


26

application of the ICPC to non-resident parents deprives them of procedural due process because

Plaintiffs were allegedly “not being provided any meaningful opportunity to a hearing before the

deprivation of their parental rights to custody of their children, and of plaintiff children’s rights

to be united with their parents.” Complaint at ¶ 65.7

Plaintiffs do not possess a viable procedural due process claim because they were

afforded repeated opportunities to be heard on placement of Z.W. and N.B.

He can hardly be heard to complain now that the District failed to afford him an

opportunity to be heard in a meaningful way on the placement of Z.W.

In other words, Plaintiffs claim that they

were not afforded an opportunity to be heard on placement of their children before application of

the ICPC by the Superior Court. The facts conclusively demonstrate otherwise.

Plaintiff Wilson was offered even more opportunities than Mr. Adgerson to be heard on

and participate in the placement decisions regarding N.B.

7 Santosky is inapposite to this claim because its holding concerned the burden of proof necessary for termination of parental right proceedings. It did not involve the ICPC, which “prohibits a state from sending a child or causing a child to be sent into another party state ‘for placement in foster care or prior to a possible adoption, unless the sending state complies with each requirement set forth in this compact and applicable laws of the receiving state that govern the placement of children.’” In re T.M.J., 878 A.2d at 1202 (quoting D.C. OFFICIAL CODE § 4-1422).


27

Plaintiff Wilson’s current claim that he

was not afforded an opportunity to be heard “prior to deprivation” simply is not borne out by the

circumstances involving removal of N.B. — by comparison, it is wholly contradicted by the

facts.

Once removal of Z.W. and N.B. occurred, ordinary judicial review of the placement

occurred by virtue of the neglect petition filed with the Superior Court of the District of

Columbia. “If local government ‘makes ordinary judicial process available to respondent for

resolving its … dispute, that process is due process.’” Lujan v. G&G Fire Sprinklers, Inc., 532

U.S. 189, 197 (2001) (unanimous decision). Further, the Supreme Court has held that a

procedural due process claim lacks merit where there exists an adequate state court remedy. See


28

Parratt v. Taylor, 451 U.S. 527 (1981). Here, the removal and placement processes were

overseen and controlled by a magistrate of the Superior Court. Both Plaintiffs Adgerson and

Wilson received notice of the neglect proceedings8

In sum, Plaintiffs had procedural safeguards to ensure their rights at every turn. They

were afforded repeated opportunities to be heard in a meaningful way, and the judicial

proceedings allowed Plaintiffs to redress their grievances regarding placement of Z.W. and N.B.

The fact that both Adgerson and Wilson failed to avail themselves of multiple opportunities to be

heard cannot be the fault of the District. There simply is no viable claim here regarding

procedural due process, and Count II of the Complaint must be dismissed.

and participated in them with legal

representation. With Court supervision, there were numerous avenues available for Plaintiffs

Adgerson and Wilson to contest custody and placement decisions, as well as potential

application of the ICPC. As such, there was no procedural due process violation. See Santos v.

Los Angeles County Dep’t of Children and Family Svcs., 200 Fed. Appx. 681, 682 (9th Cir.

2006) (“[S]he was not deprived of a liberty interest without due process, as there were numerous

avenues available to her under California law for contesting the custody actions about which she

complains.”).

V. Plaintiffs have not alleged a viable equal protection claim regarding the ICPC because no fundamental right is associated with the placement of a child who has been taken into custody because of neglect and because the classification is rationally related to the District’s compelling interest in protecting the welfare of neglected children.

Plaintiffs claim that the District has denied them equal protection by virtue of its

application of the ICPC to them, which carries with it an obligation that the receiving jurisdiction

perform a home study prior to placement, whereas placements to non-custodial parents who

8 In paragraph 39, Plaintiff Wilson avers that he was not served with notice of the shelter care hearing. The Court records establish, however,


29

reside within the District are not subject to a home study. See Complaint at ¶¶ 67-69. At its

core, Plaintiffs claim that the District has impermissibly treated non-residents differently from

residents in its administration of placements. Id. at ¶ 69 (“The discriminatory standards applied

by Defendants are based solely on the parent’s place of residence …”). Plaintiffs’ equal

protection claim must be dismissed, however, because the classification is rationally related to

the District’s legitimate interest in protecting the welfare of neglected children.

Plaintiffs’ equal protection challenge must be evaluated under a rational basis test. The

rational basis framework applies to all equal protection claims unless Plaintiffs can demonstrate

that the alleged classification targets a suspect class or burdens a fundamental right. Hedgepeth

ex rel. Hedgepeth v. Washington Metro. Trans. Auth., 386 F.3d 1148, 1153-54 (D.C. Cir. 2004).

It is well established in this Circuit that classifications based upon geographic location, or, more

particularly, residency in the District of Columbia, do not target a “suspect class” for purposes of

an equal protection challenge. See Banner v. United States, 428 F.3d 303, 307 (D.C. Cir. 2005);

Calloway v. District of Columbia, 216 F.3d 1, 7 (D.C. Cir. 2001); United States v. Cohen, 733

F.2d 128, 136 n.12 (D.C. Cir. 1984) (en banc).

In determining whether a right is “fundamental” for purposes of an equal protection

analysis, the D.C. Circuit has made clear that the asserted right must be read in conjunction with

any legitimate interests of the government in abridging the right. Hedgepeth ex rel. Hedgepeth v.

Washington Metro. Trans. Auth., 386 F.3d at 1155-56. Hedgepeth involved allegations that

Metro Police, during a week-long special operation, arrested juveniles for eating in Metrorail

stations while similarly-situated adults were issued citations for identical violations. Id. at 1153.

In assessing the right at issue, the D.C. Circuit rejected the plaintiff’s attempt to broadly define

the right as “the right to be free from restraint.” Id. at 1155. Rather, the Court stated that the


30

government had a legitimate interest in curtailing his liberty based upon his violation of the law.

Id. at 1155-56. The D.C. Circuit accordingly evaluated the right in the context in which it was

raised, as “the right of freedom of movement when there is probable cause for arrest.” Id. at

1155. Recognizing that such a right had never been recognized as a fundamental one, the D.C.

Circuit evaluated the classification under a rational basis standard. Id. at 1156.

Similarly, no court has recognized a fundamental right of a parent to the custody of his or

her child where the child is the subject of a neglect or abuse proceeding. To the contrary, courts

have long recognized that the right to family integrity necessarily must give way when there is

evidence that a child has been abused or neglected. See, e.g., Brokaw v. Mercer County, 235

F.3d 1000, 1019 (7th Cir. 2000) (constitutional right to family integrity is limited by

government’s interest in safeguarding child welfare); Croft v. Westmoreland County Children

and Youth Servs., 103 F.3d 1123, 1125 (3rd Cir. 1997). In such circumstances, courts recognize

the state’s interest transcends the parents’ rights and permits the state to take custody of a child.

See Gomes v. Wood, 451 F.3d 1122, 1128 (10th Cir. 2006) (“States have a parens patriae

interest in preserving and promoting children’s welfare, including ‘a “traditional and

transcendent” interest’ in protecting children from abuse.”) (citing Santosky v. Kramer, 455 U.S.

at 766; quoting J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997)). Accordingly,

where the government has evidence of abuse or neglect of a child, the parents’ interest in family

integrity, important as it may be, is not fundamental for equal protection analysis because that

interest is “limited by the compelling government interest in the protection of children.” Croft,


31

103 F.3d at 1125. Because only fundamental rights trigger heightened scrutiny, a rational basis

analysis must be applied to Plaintiffs’ equal protection challenge.9

Under rational basis review, “equal protection ‘requires only that the classification

rationally further a legitimate state interest.’” Banner v. United States, 428 F.3d at 307 (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Under this deferential analysis, the government

action “must be upheld against equal protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S.

312, 320 (1993) (citations omitted). Further, it is the Plaintiffs’ burden to negate every

conceivable basis to support the challenged classification, regardless of whether the rationale

was articulated by the government at the inception of the classification or whether the rationale is

supported by the record before the Court. Id. at 320-21 (citations omitted). Only where the

government’s classification rests on grounds that are wholly irrelevant to its legitimate objectives

can an equal protection challenge be sustained on rational-basis review. Id. at 324 (citations

omitted); see also FCC v. Beach Comm’n, Inc., 508 U.S. 307, 313 (1993) (“[E]qual protection is

not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”).

The District’s membership in the ICPC is intended “to ensure protection and services to

children who are placed across state lines.” See CFSA ICPC Policy Statement, Ex. 27, at 1.

Participation by the District ensures that placements made outside its borders are vetted in

advance. Id. While the District is able to make informed placement decisions in cases where the

proposed placement is within the District, see generally CFSA Investigations Policy Statement,

Ex. 30, at Procedure L.9; Placement and Matching Policy Statement, Ex. 31, at Procedure F, its

ability and authority to reach such decisions, through interviews or visits to the proposed home,

9 While the District believes rational-basis review is unquestionably appropriate here, the District submits that its interest in safeguarding neglected children as detailed in this brief would similarly defeat an equal protection challenge under heightened scrutiny.


32

is necessarily diminished outside its jurisdictional lines. The ICPC guarantees that both the

sending and receiving jurisdiction are satisfied that a proposed placement will be in the child’s

best interest. Further, the ICPC permits children to return to the District in the event the out-of-

state placement becomes contrary to the child’s best interests or that the child is able to return to

the home from which he or she was removed. See CFSA ICPC Policy Statement, Ex. 27, at 1.

Moreover, the safeguards afforded by the ICPC, such as the requirement that the

receiving jurisdiction perform a home study of the proposed placement, are intended to

approximate those available to CFSA and other state child welfare agencies where the placement

occurs within the home jurisdiction. See id. at 1-2. In cases where a child has been removed

from the home and is the subject of neglect proceedings, similar safeguards exist and are

followed to ensure that placements with non-offending, absentee parents who reside within the

District are in the best interest of the affected child. See generally SOMF 3-9. Once parentage is

established, CFSA determines whether the non-custodial parent was involved or culpable in the

underlying allegations of neglect or abuse. SOMF 5. If not, CFSA performs a criminal

background check and searches its internal database in an attempt to locate any history of abuse

or neglect by the non-custodial parent that may make a placement inappropriate. SOMF 5.

Similar background checks are conducted for other individuals living with the non-custodial

parent. SOMF 6. In every case, CFSA performs an inspection of the non-custodial parent’s

home to determine its suitability to meet the child’s needs, just as the receiving jurisdiction does

when the ICPC is involved. SOMF 7. Before recommending the placement to the Family Court,

CFSA weighs various clinical considerations in an effort to determine whether the placement

with the non-custodial parent will be in the child’s best interest. SOMF 8.


33

As the above-cited authorities establish, it cannot be seriously disputed that the District

maintains a legitimate interest in protecting children that have been subjected to abuse or neglect.

Indeed, the District’s interest in this regard has been repeatedly identified as a compelling one.

See, e.g., Santosky v. Kramer, 455 U.S. at 769; Stanley v. Illinois, 405 U.S. 645, 649 (1972);

Croft v. Westmoreland County Children and Youth Servs., 103 F.3d at 1125, Moreover, once

the government has exercised custody over a child, it retains a further interest in ensuring that the

home to which the child is released will adequately further the child’s interests. See Lofton v.

Secretary of Dep’t of Children and Family Servs., 358 F.3d 804, 819 (11th Cir. 2004) (“It is hard

to conceive an interest more legitimate and more paramount for the state than promoting an

optimal social structure for educating, socializing, and preparing its future citizens to become

productive participants in civil society—particularly when those future citizens are displaced

children for whom the state is standing in loco parentis.”); Dep’t of Children and Families v.

Benway, 745 So.2d at 439 (“Once a court has legal custody of a child, it would be negligent to

relinquish that child to an out-of-state parent without some indication that the parent is able to

care for the child appropriately.”).

Indeed, Plaintiffs do not challenge the legitimacy of the District’s interest in ensuring the

safety of children in its administration of interstate placements in the Complaint. Nor do they

directly claim that the District’s participation in the ICPC lacks a rational relationship to that

interest. Rather, their chief complaint is that home studies are inconvenient to non-residents

because they are alleged to be more rigorous than the assessments CFSA performs for resident

placements and/or more time consuming. See Complaint ¶ 69. But the focus of an equal

protection analysis is not on the effects of the challenged classification; it is on the rationale

invoked by the government. See Personal Administrator of Massachusetts v. Feeney, 442 U.S.


34

256, 272 (1979) (“When the basic classification is rationally based, uneven effects upon

particular groups within a class are ordinarily of no constitutional concern.”). Even were the

effects of the classification an appropriate consideration in the equal protection analysis (which it

is not), the challenged effect of the ICPC—potential delay in approving a placement with a non-

resident parent—is not attributable to the District. As is clear from the pleadings and the record

herein, it is the outside jurisdiction that performs the home study and controls the speed at which

it is accomplished. That the District may be able to make a placement recommendation with a

resident parent more quickly than other states cannot form the basis of a viable equal protection

challenge.

There can be no question that the District’s participation in the ICPC is rationally tethered

to its legitimate interest in assuring the safety of neglected children. Accordingly, Plaintiffs’

equal protection challenge must fail.

VI. Plaintiffs have not alleged a viable violation of the Social Security Act because the provisions invoked by Plaintiffs do not afford them a private cause of action and the District complied with those provisions in any event.

Plaintiffs additionally bring claims pursuant to 42 U.S.C. § 1983, alleging that

Defendants violated the Social Security Act (“SSA”), as amended by the Adoption Assistance

and Child Welfare Act (“Adoption Act”) and the Safe and Timely Interstate Placement of Foster

Children Act (“STIPFCA”), the relevant portions of which require that, in exchange for federal

funding, the District develop a plan with respect to its administration of foster care and adoption

services for approval by the United States Secretary for Health and Human Services. See 42

U.S.C. § 671(a). Among other components, the Adoption Act requires States’ plans to “consider

giving a preference to an adult relative over a non-related caregiver when determining a

placement for a child” and to “have in effect procedures for the orderly and timely interstate


35

placement of children.” 42 U.S.C. §§ 671(a)(19) and (25). As acknowledged by Plaintiffs, the

District already has such a plan and, thus, it already is in compliance with the Adoption Act. See

Complaint at ¶ 73 (“The District of Columbia has developed a plan to comply with 42 U.S.C. §

671….”). Nevertheless, Plaintiffs proceed on the erroneous assumption that these provisions of

the Adoption Act create rights that are enforceable by them against the District should the

District allegedly fail to “giv[e] a preference to an adult relative” or fail to “orderly and timely

[effect] interstate placement of children.” Id. at ¶¶ 74-76.

As a threshold matter, however, neither §§ 671(a)(19) nor (25) creates a private cause of

action for Plaintiffs cognizable under 42 U.S.C. § 1983. The inquiry to determine whether a

private cause of action exists consists of three elements: (1) whether the statute unambiguously

confers rights, Gonzaga v. Doe, 536 U.S. 273, 283 (2002); (2) whether the statute is too vague or

amorphous to enforce, Blessing v. Freestone, 520 U.S. 329, 340-41 (1997); and (3) whether the

statute unambiguously imposes binding obligations on the States, Id.

In Suter v. Artist M., 503 U.S. 347 (1992), the Supreme Court held that a strikingly

similar component of the state plan contemplated by 42 U.S.C. § 671(a) could not be privately

enforced through 42 U.S.C. § 1983. Specifically, the Suter Court considered § 671(a)(15), which

requires, inter alia, that the state develop a plan to use “reasonable efforts” to prevent removal

from a child’s home. The Court identified three principal reasons for its determination that the

language of § 671(a)(15) did not create a private cause of action. See Suter, 503 U.S. at 358-62.

First, the plain language of the Adoption Act requires only that the State submit a plan to the

Secretary, with the contents of the plan set forth in § 671(a). Id. Second, the Adoption Act did

not define the phrase “reasonable efforts,” as used in § 671(a)(15), or give any indication of how

such efforts were to be measured. Id. Lastly, Congress gave authority to the Secretary of Health


36

and Human Services to reduce payments to a state that did not comply with § 671(a) indicating

that the relevant portions of the Adoption Act would be enforced outside of a private lawsuit. Id.

In sum, the Court determined that § 671(a)(15) “impose[s] only a rather generalized duty on the

State, to be enforced not by private individuals, but by the Secretary [of Health and Human

Services].” Id. at 363.10

Neither 42 U.S.C. § 671(a)(19) nor (25) contain “the sort of rights-creating language

critical to showing a congressional intent to create new rights.” Gonzaga, 536 U.S. at 286. The

subsection at issue only requires the District to formulate a plan for its adoption services in

exchange for federal funds, which the Plaintiffs concede has already been done. The challenged

provisions speak only in terms of the District’s responsibilities to the Secretary of Health and

Human Services—not to individual caretakers, children or their relatives. See 42 U.S.C. §§

671(a)(19) and (25). While Plaintiffs might indirectly benefit from the District’s obligations to

the federal government, the Supreme Court has made quite clear that such incidental benefits

cannot support a private cause of action. Gonzaga, 536 U.S. at 283 (“[I]t is “rights, not the

broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [42 U.S.C.

§ 1983].” (emphasis in original)).

More importantly, the statutes at issue are too vaguely drafted to be enforceable; they are

hardly indicative of a congressional intent to confer a private cause of action upon the Plaintiffs.

See Blessing, 520 U.S. at 340-41. 42 U.S.C. § 671(a)(19) requires the state plan only to

10 Following Suter, Congress passed 42 U.S.C. § 1320a-2 (1994), which provides that provisions of the Social Security Act are not unenforceable by private litigants merely because they are included as specified components of a state plan to receive federal funding. Nevertheless, the holding of Suter remains intact. See 42 U.S.C. § 1320a-2 (“this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.”); White by White v. Chambliss, 112 F.3d 731, 739 n.4 (4th Cir. 1997) (section 1320a-2 did not alter Fourth Circuit’s holding, relying upon Suter, that § 671(a)(10) of the Adoption Act was not privately enforceable); cf. Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 538 (D. Neb. 2007) (“Accordingly, most courts hold that if § 1320a-2 effectively overruled anything in Suter, it overruled only that portion of the opinion identifying and allowing a court to rely exclusively on the ‘state plan’ criteria in determining the existence of a federal right.”).


37

“consider giving a preference to an adult relative” in making placement decisions. The statute

cannot be privately enforced because Congress deferred the ultimate decision of whether to give

preferences to adult relatives to the District and the States. Importantly, Plaintiffs do not contend

that that the District failed to undertake such consideration; rather, they seek to hold Defendants

liable for “breach[ing] their duty … to provide preference to relative placements.” See

Complaint at ¶ 74. If Congress had, in fact, intended to give Plaintiffs an enforceable preference

in placement decisions, it could have, and would have, unequivocally required states to give

relatives a preference; it certainly would have used language other than the flexible term

“consider.” The plain language of § 671(a)(19) simply contains no enforceable preference. See

Blessing, 520 U.S. at 340-41. Moreover, the statute offers no meaningful guidance as to what

level of “preference” would be appropriate. See Doe by Fein v. District of Columbia, 93 F.3d

861, 866-67 (D.C. Cir. 1996) (finding requirement that the District ensure investigations into

alleged child abuse be carried out in exchange for federal funding to be unenforceable by a

private litigant because the statute “does not provide sufficiently specific, mandatory terms

requiring states to investigate in a particular manner or time frame.”).

As for Plaintiffs’ claim purporting to arise under 42 U.S.C. § 671(a)(25), that statute

requires only that the state plan “provide that” interstate placements of children be performed in

an “orderly and timely” fashion. As noted by the D.C. Circuit in Doe in its interpretation of a

similar statute, the language of § 671(a)(25), directing the District to “provide that” interstate

placements should be completed orderly and timely, is merely indicative of Congress’ intent to

provide states with flexibility in how they “provide that” interstate placements occur. Doe by

Fein v. District of Columbia, 93 F.3d at 866. Moreover, the statute here affords states no

indication of the criteria under which the “orderly and timely” standard is to be measured. Such


38

aspirational language cannot support a finding of an unambiguous congressional intent to confer

rights upon private citizens. See Gonzaga, 536 U.S. at 283; see also Suter, 503 U.S. at 360

(“How the State was to comply with this directive, and with the other provisions of the

[Adoption] Act, was, within broad limits, left up to the State.”).

Additionally, had Congress intended to confer privately enforceable rights in 42 U.S.C.

§§ 671(a)(19) and (25), it would simply have said so, as it did with other paragraphs of § 671(a).

With respect to § 671(a)(18), prohibiting racial discrimination in the context of foster care and

adoption, Congress explicitly provided a federal cause of action within two years of a violation.

42 U.S.C. § 674(d)(3). That Congress did not do so for paragraphs (19) and (25)—or, more

broadly, for subsection (a) in its entirety—establishes that Congress did not intend for such

provisions to be enforced through § 1983.

Even assuming that Plaintiffs could enforce 42 U.S.C. §§ 671(a)(19) and (25) through §

1983, such claims must be dismissed as the District has clearly complied with those provisions.

Section 671(a)(19) merely requires the District to consider giving a preference to adult relatives

in making placement decisions. CFSA has considered such a preference, and determined that it

“always give[s] primary consideration to kinship placement options.” CFSA Placement and

Matching Policy, Ex. 31, at 3. Nothing more is required of the District under the statute.

Moreover, CFSA demonstrably honored that preference in the cases of Z.W. and N.B.

11 The statute does not establish a hierarchy for various classes of relatives or distinguish between parents and other relatives,

Accordingly, any claim brought pursuant to § 671(a)(19) must be dismissed.


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Furthermore, § 671(a)(25) expressly provides that one way a State can provide for the

“orderly and timely” interstate placement of children is to be a participant in an interstate

compact. Because the District indisputably participates in the ICPC, see generally D.C.

OFFICIAL CODE § 4-1422, it has satisfied the dictates of § 671(a)(25). Accordingly, any claim

brought pursuant to § 671(a)(25) must be dismissed

VII. The Court should decline to exercise supplemental jurisdiction over Plaintiffs’ local law claims.

Because Plaintiffs have failed to plead a viable cause of action under federal law, the

Court should decline to exercise its jurisdiction over Plaintiffs’ supplemental claims arising

under the law of the District of Columbia. See Complaint at ¶¶ 77-81. 28 U.S.C. § 1367(c)(3)

permits the Court to decline supplemental jurisdiction over state or local claims where it has

dismissed all claims over which it has original jurisdiction. See also Carnegie–Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered ... will point toward declining to

exercise jurisdiction over the remaining state-law claims.”).

In the event the Court determines that one or more of Plaintiffs’ federal causes of action

survives the instant motion, the Court should nevertheless decline to exercise its jurisdiction over

Plaintiffs’ claims purporting to arise under D.C. OFFICIAL CODE §§ 4-1301.09a, 16-2311(a)(1)

and (b)(1) for the independent reason that these claims raise novel issues of local law. See 28

U.S.C. § 1367(a)(1) (district court may decline supplemental jurisdiction over claims that raise

novel or complex issues of State Law). These statutes set forth general procedures to be

followed by CFSA, or other entities taking custody of children, to safely and appropriately return

the affected child home or to place the child in shelter care. It appears that District of Columbia

Courts have not had occasion to interpret the contours of these statutes, as there are no reported


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decisions that would guide this Court’s analysis of what constitutes “reasonable speed” as used

in D.C. OFFICIAL CODE § 16-231112

VIII. Should the Court choose to exercise supplemental jurisdiction over Plaintiffs’ local law claims, those claims should be dismissed.

or “reasonable efforts” as used in § 4-1301.09a. In this

Circuit, district courts “should be reluctant to retain pendent jurisdiction over a question for

which state jurisprudence gives inadequate guidance.” Financial General Bankshares, Inc. v.

Metzger, 680 F.2d 678, 776 (D.C. Cir. 1982); see also Doe v. Board of Professional

Responsibility of District of Columbia Court of Appeals, 717 F.2d 1424, 1428-29 (D.C. Cir.

1983) (district court abused its discretion in exercising supplemental jurisdiction in deciding

novel issues of District of Columbia law).

Even if this Court elects to exercise supplemental jurisdiction of Plaintiffs’ local law

claims, the claims are not viable. First, because Plaintiffs failed to comply with D.C. OFFICIAL

CODE § 12-309, they are not eligible to maintain claims for unliquidated damages under D.C.

law. Further, on the merits, Plaintiffs’ local law claims must be dismissed because “reasonable

efforts” were made to facilitate placement of Z.W. and N.B. with family members and because

the Superior Court determined that shelter care was necessary based on the undisputed neglect of

both children.

A. Plaintiffs failed to comply with D.C. OFFICIAL CODE § 12-309.

Plaintiffs do not possess a viable state law claim because they have failed to comply with

the notice requirements of D.C. OFFICIAL CODE § 12-309 and therefore cannot survive a motion

12 While the District of Columbia Court of Appeals found that police officers had not violated the “reasonable speed” provision of D.C. Code § 2311 in Jackson v. District of Columbia, 412 A.2d 948, 957 n.21 (D.C. 1980), its decision, memorialized in a brief footnote, relates to the obligations with respect to suspected delinquent children as opposed to those who have been taken into custody on suspicion of neglect. In any event, the holding does not announce any standard by which this Court would be able to evaluate compliance with the “reasonable speed” provision.


41

to dismiss under Federal Rule of Civil Procedure 12(b)(1). See Candido v. District of Columbia,

242 F.R.D. 151, 158 n. 6 (D.D.C. 2007). Specifically, a party may not maintain an action:

[A]gainst the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage.

D.C. OFFICIAL CODE § 12-309. Compliance with this provision is a mandatory condition

precedent to filing a lawsuit against the District and applies to suits for unliquidated damages.

Johnson v. District of Columbia, 572 F. Supp. 2d 94, 111 (D.D.C. 2008); Byrd v. District of

Columbia, 538 F. Supp. 2d 170, 175-76 (D.D.C. 2008); Gross v. District of Columbia, 734 A.2d

1077, 1081 (D.C. 1999). Plaintiffs failed to provide written notice to the Mayor of the District of

Columbia prior to filing this suit for unliquidated damages and, therefore, their claims arising

under the law of the District of Columbia must be dismissed.

As part of their complaint, Plaintiffs seek “damages in an amount to be awarded by a

jury.” Complaint at 29, ¶ (h). Plaintiffs’ own filing makes clear that these compensatory

damages were not easily ascertainable at the time they arose and, therefore, constitute

unliquidated damages. See Campbell v. District of Columbia, 580 A.2d 1295, 1300 (D.C. 1990)

(damages are liquidated when they are an easily ascertainable sum at the time the injury arose).

Plaintiffs have not submitted the required notice to the Mayor of the District of

Columbia. Section 12-309 requires written notice that “disclose(s) both the factual cause of the

injury and a reasonable basis for anticipating legal action as a consequence.” Kennedy v. District

of Columbia, 519 F. Supp. 2d 50, 59 (D.D.C. 2007). Yet the District never received this notice.

SOMF 64. Plaintiffs’ claims for monetary relief under D.C. OFFICIAL CODE §§ 4-1301.09a and

13-2311 therefore must be dismissed.


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B. Claims under D.C. OFFICIAL CODE § 4-1301.09a must be dismissed because reasonable efforts were made to keep the Plaintiff children in their homes and facilitate their permanency plan.

Count V of the Complaint is based, in part, upon an alleged violation of D.C. OFFICIAL

CODE § 4-1301.09a, which requires that reasonable efforts be made to prevent a child from being

removed from a home and, once removed, that reasonable efforts be made for the child to safely

return to his or her home. See D.C. OFFICIAL CODE § 4-1301.09a(b)(1)-(3) (2001 ed.). Yet that

requirement is not absolute. Where preservation of the child’s home or family setting is

inconsistent with the child’s permanency plan, CFSA must make reasonable efforts to further the

permanency plan as opposed to attempting to return the child home. See D.C. OFFICIAL CODE §

4-1301.09a(c). In assessing and making “reasonable efforts” under § 4-1301.09a, “the child’s

safety and health shall be the paramount concern.” D.C. OFFICIAL CODE § 4-1301.09a(a).

Plaintiffs’ claim for relief under the statute begins from a faulty premise. They base their

claim upon the mistaken assumption that the District had an obligation to utilize reasonable

efforts to keep Z.W. and N.B. in Adgerson’s and Wilson’s physical custody. See Complaint at ¶

80. Although § 4-1301.09a(b)(1) speaks of the District’s obligations to preserve and reunify the

“family,” a holistic reading of the statute reveals that the statute’s use of the term “family” refers

to the home from which he or she was removed. For example, paragraph (2) of subsection (b)

requires “reasonable efforts shall be made prior to the removal of a child from the home in order

to prevent or eliminate the need for removing the child.” (emphasis added). Similarly, after

removal has been accomplished § 4-1301.09a(b)(3) requires the District to use “[r]easonable

efforts …to make it possible for the child to return safely to the child’s home.” This reading is

further supported by § 4-1301.02(10)(A)’s description of “family preservation services” as those

“designed to help children return to families from which they have been removed.”


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Because Plaintiffs Z.W. and N.B. were not living with Plaintiffs Adgerson and Wilson at

the time they were removed from their mothers’ custody, CFSA did not have obligations to

“preserve or reunify” Adgerson and Wilson’s physical custody over Z.W. and N.B. Rather,

CFSA was required by § 4-1301.09a only to utilize reasonable efforts to keep or return the

Plaintiff children to the homes from which they were removed. A contrary reading would require

CFSA to preserve that which did not exist at the time of the removal—physical custody of the

Plaintiff children by the Plaintiff parents. Similarly, once the Plaintiff children had been

removed from their mothers’ custody, “reunification” could not logically be achieved with

Plaintiffs Adgerson and Wilson.

1. Plaintiffs Andre Adgerson and Z.W.

With respect to Plaintiffs Adgerson and Z.W., reasonable efforts could not be made to

prevent removal because


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See Wray v. City of New York, 490 F.3d 189, 192-95 (2d Cir. 2007) (chain of causation is

broken by a judge’s exercise of independent judgment).

2. Plaintiffs Sam Wilson and N.B.

CFSA’s attempts to prevent N.B. from being removed were similarly reasonable.


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According to the complaint, Plaintiff Wilson did not make himself available as a

placement option for N.B until January 13, 2011, at a scheduled FTM. Compl. ¶ 40.


46

This Court should defer to the rulings of the Family Court concerning CFSA’s reasonable

efforts to prevent removal and to achieve the permanency goals it set. CFSA’s obligation to use

“reasonable efforts” were guided by the Family Court, in that the Family Court determined what

the permanency goals should be and the timeframes by which they were to be accomplished,

taking into account the best interests of N.B. Plaintiffs should not be permitted to second-guess

CFSA’s compliance with the Family Court’s own orders in this lawsuit.


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C. Plaintiffs’ claims under D.C. OFFICIAL CODE § 16-2311 must be dismissed because Z.W. and N.B. were not required to be released to their parents and shelter care was appropriate.

Plaintiffs’ claim under D.C. OFFICIAL CODE § 16-2311, which they claim obligates the

District to release children “with all reasonable speed” to the child’s parents, must also be

dismissed. Plaintiffs appear to base independent claims upon §§ 16-2311(a)(1) and (b)(1), but it

is evident that Plaintiffs have misconstrued the statute. Section 16-2311(a)14

14 D.C. OFFICIAL CODE § 16-2311(a) (2001 ed., 2011 supp.) provides:

does not set forth a

rigid requirement that children must be released to their parents’ custody in all cases. To the

contrary, the statute prescribes different entities to which an individual taking custody of a child

must deliver the child, recognizing that various circumstances might arise requiring a person or a

state agency to take custody of a child. Section 16-2311(a) provides that a person taking custody

of a child shall take one of the following actions, depending on the circumstances: release the

child to his or her parent, bring the child to the Director of Social Services, bring the child to a

medical facility, or bring the child to the CFSA Director. (2001 Ed., 2011 Supp.) Where a child

is alleged to be a neglected child, as in the cases of Z.W. and N.B., a person taking custody of the

child is required bring him or her to the CFSA Director with reasonable speed and give prompt

notice to the child’s parents, if they are known, together with the reasons for the child having

been taken into custody. D.C. OFFICIAL CODE § 16-2311(a)(4); see also D.C. OFFICIAL CODE §

(a) A person taking a child into custody shall with all reasonable speed— (1) release the child to his parent, guardian, or custodian upon a promise to bring the child before the Division when requested by the Division, unless the child’s placement in detention or shelter care appears required as provided in section 16-2310;

(2) bring a child alleged in need of supervision or delinquent before the Director of Social Services; or (3) bring the child to a medical facility if the child appears to require prompt treatment or to require prompt diagnosis for medical or evidentiary purposes and may order the child retained at the hospital subject to a further order of the Metropolitan Police Department of the District of Columbia, the Director of the Agency, or the Superior Court of the District of Columbia; or (4) bring a child alleged to be a neglected child to the Director of the Agency. Any person taking a child into custody shall give prompt notice to the Corporation Counsel and to the parent, guardian, or custodian (if known) together with the reasons for custody.


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16-2301(29) (defining “Agency” as the Child and Family Services Agency). In such a case,

there is no obligation to release a child to his or her parents—no doubt because a parent was

likely the cause of the neglect. Because Z.W. and N.B. were alleged to be neglected children at

the time they were removed by CFSA, section 16-2311(a)(1) does not apply under a plain

reading of the statute.

But even if § 16-2311(a)(1) governed, the statute explicitly provides that an individual

who takes custody of a child need not release the child to his or her parent where it appears that

shelter care is necessary. Here,

The Court’s decision in this regard

must absolve Defendants from any liability under § 16-2311(a)(1), assuming that it applies.

Plaintiffs’ claim under § 16-2311(b)(1) stands on even shakier footing because it applies

only when a suspected delinquent child has committed a violation of the law or other wrongful

action. Section 16-2311(b)(1) applies only to instances “[w]here a child is brought before the

Director of Social Services.” According to subsection (a), a child must be brought to the

Director of Social Services where the child is alleged to have been delinquent or “in need of

supervision,” meaning the child has in some way acted improperly, for example by being

habitually truant from school. D.C. OFFICIAL CODE § 16-2311(a)(2); see also D.C. OFFICIAL

CODE § 16-2301(8) (defining “child in need of supervision”). Because neither Z.W. nor N.B.

were brought before the Director of Social Services—nor were they alleged to have been

delinquent or in need of supervision as defined by the D.C. Code—Plaintiffs’ invocation of § 16-

2311(b)(1) bears no relationship to the facts of this case and any claim based thereupon must be

dismissed.


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To the extent Plaintiffs intended to invoke § 16-2311(b)(2),15

IX. Vincent Gray and Debra Portia-Usher should be dismissed because they have been sued in their official capacities only, and the District of Columbia is already a named party.

which applies where a

neglected child is brought to the Director of CFSA, such a claim would also fail. Section 16-

2311(b)(2) vests CFSA with discretion in determining the proper placement of a child depending

on the Agency’s view of the propriety of shelter care. Where CFSA determines that shelter care

is appropriate, CFSA is responsible for “select[ing] the most appropriate placement for the

child.” D.C. OFFICIAL CODE § 16-2311(b)(2). If the Agency determines that shelter care is not

required, it “may recommend” that children in its custody be released to their parents by the

Metropolitan Police Department. Id. Again, however, because shelter care clearly was required

here, there was no

breach of § 16-2311(b)(2) by Defendants. Even were CFSA to have found,

, that shelter care was unnecessary for the Plaintiff children, the statute

does not require immediate release to the children’s parents, but vests the agency with discretion

as to whether to recommend release.

A suit against a municipal official in his or her official capacity is a suit against the

municipality that employs that official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)

(recognizing that official capacity suits “generally represent only another way of pleading an

15 D.C. OFFICIAL CODE § 16-2311(b)(2) (2001 ed., 2011 supp.) provides:

“[W]hen a child is brought before the Director of the Agency, the Director shall review the need for shelter care prior to the admission to shelter care. If shelter care is required the Director shall select the most appropriate placement for the child. If the Director determines that shelter care is not required the Director may recommend to the Metropolitan Police Department of the District of Columbia the release of the child to his or her parent, guardian or custodian. When a child is being held in a hospital the case shall be reviewed by the Director. If the Director determines that shelter care is not required, he or she shall recommend to said Police the release of the child to his or her parent, guardian, or custodian. If the Director determines there is a need for shelter care but there is not a medical need requiring hospitalization, the Director shall secure the appropriate shelter care.”


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action against an entity of which an officer is an agent”) (internal citations omitted).

Accordingly, “[b]ased on the understanding that it is duplicative to name both a government

entity and the entity’s employees in their official capacity, courts routinely dismiss claims

against the officials.” Trimble v. District of Columbia, 779 F. Supp. 2d 54 (D.D.C. 2011). See

also Holmes-Ramsey v. District of Columbia, 747 F. Supp. 2d 32, 41 (D.D.C. 2010).

Here, Plaintiffs have named the District as a defendant, but they have also sued its Mayor

and the interim Director of CFSA in their official capacities as defendants. As the claims against

the Mayor Gray and Director Portia-Usher in their official capacities are redundant of Plaintiffs’

claims against the District, the claims against Mayor Gray and Director Portia-Usher in their

official capacities should be dismissed.

CONCLUSION

For the foregoing reasons, the District respectfully requests the Court dismiss Plaintiffs’

Amended Complaint with prejudice. In the alternative, the District respectfully requests

summary judgment.

Respectfully submitted,

EUGENE ADAMS Chief Deputy Attorney General for the District of Columbia ARIEL B. LEVINSON-WALDMAN Senior Counsel to the Attorney General for the District of Columbia ELLEN EFROS Deputy Attorney General Public Interest Division /s/ Grace Graham GRACE GRAHAM Chief, Equity D.C. Bar No. 472878


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___/s/_Chad Copeland__________________

CHAD COPELAND [982119] Assistant Attorney General, D.C. 441 Fourth Street, N.W., 6th Floor South Washington, D.C. 20001 Telephone: (202) 724-6623 Facsimile: (202) 741-8880 Email: [email protected] s/ Bradford C. Patrick___________ BRADFORD C. PATRICK [1004979] Assistant Attorney General 441 Fourth Street, NW, 6th Floor South Washington, D.C. 20001 Telephone: (202) 724-6627 Facsimile: (202) 741-0599 [email protected]




v. ) )

DISTRICT OF COLUMBIA, et. al., ) ) Defendants. ) ____________________________________)

PROPOSED ORDER

Upon consideration of Defendants’ Motion to Dismiss the Amended Complaint, or in the

Alternative, for Summary Judgment, any opposition thereto, and the entire record herein, it is this

__ day of _________ hereby:

ORDERED that Defendants’ Motion is GRANTED, and it is further ORDERED that the Amended Complaint is DISMISSED, with prejudice. SO ORDERED. Dated: _______________ _______________________________ HON. ROBERT L. WILKINS


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