UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

G.K., by their next friend, Katherine Cooper et al.

v. Case No. 21-cv-4-PB Opinion No.

Christopher Sununu, Governor of New Hampshire et al.

MEMORANDUM AND ORDER

Plaintiffs in this class action are minors with mental

disabilities who have been placed in the legal custody of the

New Hampshire Division of Children, Youth and Families (“DCYF”)

due to parental abuse or neglect. They have sued New Hampshire

Governor Christopher Sununu and other State officials arising

out of the operation of the State’s foster care system.

Plaintiffs seek declaratory and injunctive relief on behalf of

themselves and a putative class on the ground that defendants

are violating their federal constitutional and statutory rights

by unnecessarily placing them in institutional and group care

facilities without the benefit of an attorney or adequate case

planning. Defendants have moved to dismiss the complaint for

failure to state a claim upon which relief may be granted. For

the following reasons, I grant the motion in part and deny it in

part. I. BACKGROUND

A. New Hampshire Dependency Proceedings

New Hampshire has in place a judicial process through which

a child may be removed from the home of an abusive or neglectful

parent. The key features of that process, commonly referred to

as dependency proceedings, are set forth in the State’s Child

Protection Act. See

-C.

Dependency proceedings typically begin with the filing of a

petition alleging that a child has been abused or neglected,

which is filed in the family division of the New Hampshire

circuit court. See § 169-C:7, I. Although any person may file

such a petition, DCYF is usually the petitioner. See id. The

filing of a petition sets into motion a series of hearings that

determine the child’s placement and legal custody. “The best

interest of the child” is the court’s “primary consideration” in

these proceedings. § 169-C:2, I.

A preliminary hearing is held shortly after a petition is

filed to determine if reasonable cause exists to believe that

the child has been abused or neglected. § 169-C:15, I. If the

court finds reasonable cause, it may temporarily place the child

with DCYF. See §§ 169-C:15, III(c), 169-C:16, I(c), 169-C:3,

XXV.

Within sixty days of the filing of the petition, the court

must hold an adjudicatory hearing on the merits of the petition.

2 § 169-C:15, III(d). At that hearing, the petitioner has the

burden to prove the allegations by a preponderance of the

evidence. § 169-C:13. The parents “have the right to present

evidence and witnesses on their own behalf and to cross-examine

adverse witnesses.” § 169-C:18, III. The court is not bound by

the technical rules of evidence and may admit any evidence that

it considers relevant and material. § 169-C:12. If the court

makes a finding that the child has been abused or neglected, the

court can make a “preliminary disposition” for the protection

and placement of the child, such as ordering a transfer of legal

or protective supervision of the child to DCYF. See §§ 169-

C:18, V, 169-C:16, I.

The court must hold a dispositional hearing within thirty

days of the adjudicatory hearing. § 169-C:18, VII. At that

time, the court determines the appropriate final disposition,

which may include transferring legal custody of the child to

DCYF. See § 169-C:19, III(a). Such transfer vests DCYF with

“[t]he right to determine where and with whom the child shall

live.” § 169-C:3, XVII(a).

Once a child is in DCYF’s legal custody, the court will not

transfer custody back to the parents unless they demonstrate,

among other things, that a return of custody is in the child’s

best interest. See § 169-C:23, III. The parents generally must

make that showing at a permanency hearing, which must be held

3 within a year of the adjudicatory hearing. See § 169-C:24-b, I.

If the parents do not meet their burden at the permanency

hearing, the court must identify permanent plans for the child

other than parental reunification. See § 169-C:24-b, II. Such

plans may involve adoption, guardianship with an appropriate

party, or some other permanent living arrangement. See id. At

least annually thereafter, the court must review the steps DCYF

has taken in furtherance of finalizing the plan that is in

effect for the child. See § 169-C:24-c.

B. Court-Appointed Representatives

In all dependency proceedings, the court must appoint an

attorney to represent an indigent parent who has been accused of

abusing or neglecting the child.

-

C:10, II(a). Counsel may be appointed for an indigent parent

not accused of abuse or neglect “if the parent is a household

member and such independent legal representation is necessary to

protect the parent’s interests.”

A child involved in a dependency proceeding is entitled to

the appointment of a Court Appointed Special Advocate (“CASA”)

or “other approved program guardian ad litem” to function as the

child’s guardian ad litem (“GAL”). § 169-C:15, III(a); see

§ 169-C:10, I. If there is no GAL available for the

appointment, the court may appoint an attorney to represent the

child. § 169-C:10, I.

4 The New Hampshire Supreme Court has promulgated rules that

delineate the duties and ethical standards required of GALs.

See N.H. Code Admin. R. Gal 501.01—505.02. A GAL must act in

the best interest of the child. Gal 503.02(a). To form a good

faith conclusion about the child’s best interest, the GAL must

“gather such facts and information regarding the family history,

background, current circumstances, concerns and wishes of the

[child], from the [child] and from other sources.” Gal

503.11(a). The GAL must make recommendations to the court

consistent with the GAL’s independent assessment of the child’s

best interest. See Gal 503.02(d). The GAL also must

independently assess DCYF’s recommendations. Gal 504.01(b).

When directed by the court, the GAL must prepare a report with

recommendations, including for dispositional, permanency, and

post-permanency hearings. Gal 504.01(c). Prior to making a

final recommendation to the court, the GAL must meet with the

child on at least one occasion and inform the child about the

status of the case. Gal 503.12(a)-(c).

If the GAL becomes aware that the child disagrees with a

recommendation being made by the GAL, the GAL “shall fully

advise the appointing court of this fact.” Gal 504.01(d). In

the event of such a conflict, the court has the authority to

appoint an attorney to represent the child. See

-C:10, II(a). The attorney’s representation “may

5 include counsel and investigative, expert and other services,

including process to compel the attendance of witnesses, as may

be necessary to protect” the child’s rights. § 169-C:10, II(b).

C. The Complaint

The four named plaintiffs, G.K., C.I., T.L., and R.K.

(collectively, “Named Plaintiffs”1), are children aged fourteen

to seventeen who have been placed in DCYF’s legal custody as a

result of dependency proceedings. Each has at least one mental

disorder recognized by the American Psychiatric Association.

DCYF has placed Named Plaintiffs in institutional or group care

(collectively, “congregate care”) facilities.2

G.K. was removed from their mother’s home about two years

ago based on allegations of abuse. Initially, G.K. was placed

in the care of their grandfather, but after two months DCYF

placed G.K. in a congregate care facility where they remain

today. This facility is punitive, routinized, and regulated by

1 Named Plaintiffs proceed using pseudonymous initials to protect their identities. The complaint uses the pronouns “they” and “their” when referring to G.K., C.I., T.L., and R.K. individually. I adopt this usage in this Memorandum and Order. 2 Under New Hampshire law, a “child care institution” is a “residential child care agency where more than 12 children are received and maintained for 24-hour care for the purpose of providing them with care or training, or both.”

-E:25, III. A “group home” is a “child care agency which regularly provides specialized care for at least 5 but no more than 12 children who can benefit from residential living either on a short-term or long-term basis.” § 170-E:25, II(b).

6 strict and impersonal rules, resulting in G.K.’s inability to

fully integrate within their community.

C.I. was first placed in DCYF’s custody about twelve years

ago in response to allegations of parental abuse. A

reunification effort a little over ten years ago failed, and

C.I. has been in DCYF’s custody ever since. During that time,

C.I. has been placed with eight different foster families and

three congregate care facilities. C.I. is currently residing in

an out-of-state congregate care facility, where they have been

unable to participate in any community activities.

T.L. was placed in DCYF’s care roughly two years ago based

on abuse and neglect allegations against their mother. DCYF

initially placed T.L. in the residential program at the special

education school they were already attending at the time.

Several months later, DCYF placed T.L. in a congregate care

facility outside of New Hampshire where they continue to reside.

They are prevented from having regular visits with their family

and from making or visiting friends outside of the facility.

R.K. was placed in DCYF’s custody over two years ago due to

allegations of neglect. Thereafter, DCYF placed R.K. in three

different congregate care facilities in New Hampshire. Based on

conduct R.K. engaged in at their third placement, they were

charged with and convicted of various delinquency offenses and

committed to the Sununu Youth Services Center.

7 Named Plaintiffs would prefer to live in a family setting

or with a family member. None have had counsel appointed to

represent them in their dependency proceedings. They do not

recall participating in their case planning or having an

adequate case plan prepared for them, as required by federal

law.

Named Plaintiffs seek declaratory and injunctive relief

based on alleged “continuous and systemic legal deficiencies of

New Hampshire’s child welfare system.” Compl. ¶ 25. They

assert six claims, both as individuals and on behalf of a

putative class (“Class Plaintiffs”) pursuant to Federal Rules of

Civil Procedure 23(a) and 23(b)(2). The class that Named

Plaintiffs seek to represent includes all children who are, or

will be, in DCYF’s legal custody and: (1) are between fourteen

and seventeen years old, (2) have a mental impairment that

substantially limits a major life activity, a record of such an

impairment, or are regarded as having such an impairment, and

(3) are currently placed, or are at risk of being placed, in a

congregate care facility that is not the least restrictive

setting appropriate to their needs. The claims can be grouped

into three categories: (1) violation of the due process right to

have counsel appointed in all dependency proceedings (Count 1);

(2) failure to comply with the case planning requirements of the

Adoption Assistance and Child Welfare Act of 1980 (“CWA”), 42

et seq. (Count 2); and (3) violations of Title II

of the Americans with Disabilities Act (“ADA”),

et seq., and Section 504 of the Rehabilitation Act,

et seq., based on defendants’ alleged failure to

administer the foster care system in a manner that enables

plaintiffs to live in the most integrated settings appropriate

to their needs (Counts 3-6). Defendants have challenged the

sufficiency of plaintiffs’ allegations and moved to dismiss the

complaint in its entirety.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss for failure to

state a claim, a plaintiff must make factual allegations

sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal,

(2009) (quoting

Bell Atlantic Corp. v. Twombly,

(2007)). This

standard “demands more than an unadorned, the defendant-

unlawfully-harmed-me accusation.”

A claim is facially

plausible if it pleads “factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.”

In testing a complaint’s sufficiency, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño-Burset,

(1st Cir. 2011). First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

9 or threadbare recitals of the elements of a cause of action.”

(cleaned up). A claim consisting of little more than

“allegations that merely parrot the elements of the cause of

action” may be dismissed.

Second, I credit as true all

non-conclusory factual allegations and the reasonable inferences

drawn from those allegations, and then determine if the claim is

plausible.

The plausibility requirement “simply calls for

enough fact to raise a reasonable expectation that discovery

will reveal evidence” of illegal conduct. Twombly,

. The “make-or-break standard” is that those allegations and

inferences, “taken as true, must state a plausible, not a merely

conceivable, case for relief.” Sepúlveda–Villarini v. Dep’t of

Educ. of P.R.,

(1st Cir. 2010).

III. ANALYSIS

Defendants contend that each of plaintiffs’ three sets of

claims fails to state a claim upon which relief may be granted.

First, the right to counsel claim fails, defendants argue,

because it requires an individualized assessment of each child’s

dependency proceeding, as opposed to the categorical approach

proposed by plaintiffs. Second, defendants maintain that there

is no private right of action to enforce the case planning

requirements of the CWA. Third, the disability discrimination

claims are allegedly deficient because the State is not

10 segregating disabled children from non-disabled children in its

custody. I address these arguments in turn below.

A. Right to Counsel in Dependency Proceedings

The complaint alleges that a category of children in DCYF’s

legal custody – children between the ages of fourteen and

seventeen with mental disabilities who are currently placed, or

are at risk of being placed, in congregate care settings – have

their federal procedural due process rights violated when

counsel is not appointed to represent them in all dependency

proceedings. The premise of this claim is that plaintiffs, as a

class, have a categorical right to court-appointed counsel in

every dependency proceeding regardless of the circumstances of

their individual cases.

Defendants acknowledge that all children in dependency

proceedings have a right to counsel. But, they argue, this

right is conditional: it requires a case-by-case assessment of

the factors that the Supreme Court identified in Matthews v.

Eldridge,

(1976), which balance competing public

and private interests. Defendants maintain that those factors

must consider the particular features of each dependency

proceeding and cannot be determined on a group-wide basis.

The question, then, is not whether plaintiffs have a right

to counsel – it is uncontested that they do. Nor is there a

claim that Named Plaintiffs are entitled to counsel based on

11 individualized assessments of their dependency proceedings under

Eldridge. Rather, the sole issue is whether the State is under

a constitutional duty to provide counsel for Class Plaintiffs in

all dependency proceedings because the Eldridge factors, applied

on a class-wide basis, inevitably require appointment of counsel

irrespective of the individual circumstances of each child’s

case. I agree with defendants that the decision as to the need

for appointed counsel must be made in the context of each

dependency proceeding.

“Due process, unlike some legal rules, is not a technical

conception with a fixed content unrelated to time, place and

circumstances.” Eldridge,

(cleaned up).

Rather, “due process is flexible,” which is “necessary to gear

the process to the particular need; the quantum and quality of

the process due in a particular situation depend upon the need

to serve the purpose of minimizing the risk of error.”

Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

(1979) (cleaned up). Evaluating what process is due

requires balancing the Eldridge factors, which are:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

12 Eldridge, 424 U.S at 335.

The Supreme Court applied this framework in an analogous

context in Lassiter v. Department of Social Services,

(1981). The issue in Lassiter was whether indigent parents

involved in termination of parental rights proceedings have a

right to court-appointed counsel. The Supreme Court held that

the appointment of counsel in such proceedings must be

determined on a case-by-case basis applying the Eldridge

factors.

. As the court reasoned, “in a given case

[where] the parent’s interests were at their strongest, the

State’s interests were at their weakest, and the risks of error

were at their peak, it could not be said that the Eldridge

factors did not overcome the presumption against the right to

appointed counsel.”

. But, the Court added, “since

the Eldridge factors will not always be so distributed . . .

neither can we say that the Constitution requires the

appointment of counsel in every parental termination

proceeding.”

In adopting a case-by-case approach, the court in Lassiter

relied on an earlier case, Gagnon v. Scarpelli,

(1973), which addressed whether due process required the

appointment of counsel for indigent probationers in probation

revocation hearings. See Lassiter,

(citing

Gagnon,

). Endorsing an individualized

13 assessment in that context, the Supreme Court in Gagnon observed

that “[t]he need for counsel at revocation hearings derives, not

from the invariable attributes of those hearings, but rather

from the peculiarities of particular cases.”

.

The court suggested that counsel may be required, for example,

when a case involves “a disputed set of facts where the

presentation requires the examining or cross-examining of

witnesses or the offering or dissecting of complex documentary

evidence.”

. In Lassiter, the Supreme Court

“adopt[ed] the standard found appropriate in Gagnon” and left

“the decision whether due process calls for the appointment of

counsel for indigent parents in termination proceedings to be

answered in the first instance by the trial court, subject, of

course, to appellate review.” Lassiter,

.

Neither the Supreme Court nor any federal court of appeals

has considered whether the same standard should apply to the

appointment of counsel for children in dependency or termination

proceedings.3 The Washington Supreme Court, however, has twice

held that due process does not categorically require that

3 The two types of proceedings have distinct purposes. As the name implies, the purpose of termination proceedings “is to permanently sever the parent-child relationship,” whereas the goal of dependency proceedings “is to reunify the family.” In re C.M.,

(2012). A dependency proceeding, however, is often “a first step in a process that may ultimately result in termination of parental rights,” although “such a result is by no means a foregone conclusion.”

.

14 children be appointed counsel in such proceedings. See In re

Dependency of E.H.,

(Wash. 2018); In re Dependency

of MSR,

(Wash. 2012). In MSR, the court considered

whether due process requires that every child in a termination

proceeding be appointed counsel.

. Relying on

Lassiter, the court held that a child’s right to counsel in

these proceedings “is not universal,” and that “the trial judge

. . . should apply the [Eldridge] factors to each child’s

individual and likely unique circumstances.”

.

According to MSR, “whether any individual child is entitled to

counsel must be decided case by case.”

.

The Washington Supreme Court reaffirmed this holding in

E.H., which considered whether the reasoning in MSR extended to

all stages of dependency proceedings. See 427 P.3d at 591–92.

The court concluded that Lassiter, Eldridge, and Gagnon

supported the case-by-case approach adopted in MSR. E.H., 427

P.3d at 593–95. The court observed:

Dependency proceedings are not uniform, although each creates a tension between the State’s ability to protect children as parens patriae and the fundamental familial rights of the people who are involved in the proceedings. In some instances, such as when the parents agree to the dependency or when the State does not assume legal or physical custody of the child, this tension will be lessened. In other instances, where the dependency is contested or when the State assumes custody of a child, the tension may be heightened. Accordingly, the amount of process due to children in dependency proceedings will vary with each case.

15 Id. at 589.4

I agree with the well-reasoned opinions of the Washington

Supreme Court. As that court recognized, the logic of Lassiter,

which makes clear that due process should be assessed on a case-

by-case basis when it comes to a parent’s right to counsel in a

termination proceeding, extends to a child’s right to counsel in

a dependency proceeding. Lassiter illustrates that the risk of

erroneous deprivation in these proceedings will vary from case

to case. See

.

Applying the Eldridge factors here, there is no question

that Class Plaintiffs have protected liberty interests,

considering they have been, or are at risk of being, placed in

congregate care facilities where their physical liberty is

restricted. It is likewise clear that the State has a strong

interest both in the welfare of these children and in “an

accurate and just decision” in dependency proceedings, as well

as “a relatively weak pecuniary interest” in avoiding the cost

4 Plaintiffs have identified one district court case that came to the opposite conclusion. See Kenny A. ex rel. Winn v. Perdue,

(N.D. Ga. 2005). In a decision that predates the Washington Supreme Court cases, the court in Kenny A. held that children in Georgia’s foster care system have a right to counsel in all dependency proceedings under the state due process clause, which is coextensive with the federal due process clause.

. The court, however, did not address Lassiter or otherwise explain why a case-by-case assessment of the need for counsel was inadequate to safeguard the children’s due process rights. See

Thus, its persuasive value is limited.

16 of appointed counsel. See Lassiter,

. The

last Eldridge factor, which looks to the risk of erroneous

deprivation and the value of the additional procedures sought,

however, depends on the particular case at hand. This factor

will turn on the factual and legal complexities of individual

cases, see Lassiter

, as well as on whether

there is an existing participant in the proceeding who can

“represent the child’s interests or whose interests align with

the child’s.” MSR,

.

The fact that a dependency proceeding involves an older

disabled child who may be placed in a congregate care facility

does not, by itself, satisfy the last Eldridge factor. Where

the issues at stake are not complex and the GAL’s views are

aligned with the child’s, the risk of error and the added

benefit from the participation of counsel appear to be low. On

the other hand, where the GAL’s recommendation goes against the

child’s wishes and the case presents complicated legal or

factual issues, the risk-benefit analysis would likely tip the

scales in favor of appointing counsel for the child. For those

proceedings that fall along this spectrum, the court’s

discretionary judgment about the need for counsel is

indispensable. As these examples illustrate, it cannot be said

that the Eldridge factors mandate the appointment of counsel in

all dependency proceedings involving Class Plaintiffs.

17 New Hampshire’s statutory scheme adequately protects

children’s right to counsel. The statute gives the trial judge

discretion to appoint counsel for a child “where the child’s

expressed interests conflict with the recommendation for

dispositional orders of the [GAL].”

-

C:10, II(a). Further, the applicable regulations obligate a GAL

to become informed about the child’s wishes and to inform the

court when the child disagrees with the GAL’s recommendation.

See N.H. Code Admin. R. Gal 503.11(a), Gal 504.01(d). This

carefully calibrated scheme reserves the appointment of counsel

for those children whose interest is not adequately represented

in court. In those circumstances, the court must apply the

Eldridge factors to the particular case at hand to determine if

due process requires that counsel be appointed to represent the

child.5

In sum, whether plaintiffs are entitled to counsel in their

dependency proceedings must be determined on a case-by-case

basis utilizing the Eldridge factors. Accordingly, plaintiffs’

5 There is no allegation that state courts are failing to comply with these statutory requirements. Instead, plaintiffs merely allege that only one attorney was appointed to represent a child in 2019 to support their view that the discretionary system is deficient. Without information about the number of occasions when counsel was requested in the same timeframe and the circumstances of those requests, however, I cannot infer from the single appointment that state judges are systematically refusing to grant requests for counsel where the Eldridge factors would mandate that counsel be appointed.

18 claim that they have a categorical right to counsel irrespective

of the circumstances of their individual dependency proceedings

fails to state a claim for relief.

B. Case Planning Requirements under the CWA

Plaintiffs allege that defendants are failing to provide

them with timely and accurate written case plans as required by

§ 671(a)(16) of the CWA. Defendants do not dispute the

sufficiency of plaintiffs’ factual allegations in support of

this claim. Instead, they argue that there is no private right

of action to enforce the CWA’s case planning requirements.

The CWA is a federal statute embedded in the Social

Security Act that provides funding to the State for child

welfare, foster care, and adoption assistance. To receive the

funding, the State must adopt a plan that meets the CWA’s

requirements and receive approval from the Secretary of Health

and Human Services (“Secretary”). See

. One

required component of such a plan is that the State must develop

a case plan “for each child receiving foster care maintenance

payments.” § 671(a)(16). A case plan is a written document

that must include the child’s records and information about the

plans for the child, such as the prospective placement, the

services the child will receive, and the steps taken toward

stability and eventual permanency. § 675(1). The Secretary has

the authority to withhold funding if the State fails to achieve

19 substantial compliance with the statutory requirements and fails

to implement a corrective plan. See § 1320a-2a.

Section 671(a)(16) does not explicitly provide for a

private right of action. Plaintiffs argue, however, that this

case planning provision is enforceable through a cause of action

brought under

.

Section 1983 can be used to enforce a provision of a

federal statute only when that provision creates an individual

right. See Rio Grande Cmty. Health Ctr., Inc. v. Rullan,

, 72–73 (1st Cir. 2005) (“Not all violations of federal

law give rise to § 1983 actions: ‘the plaintiff must assert the

violation of a federal right, not merely a violation of federal

law.’”) (quoting Blessing v. Freestone,

(1997)) (cleaned up); see also Gonzaga Univ. v. Doe,

(2002) (“It is rights, not the broader or vaguer

benefits or interests, that may be enforced [under § 1983].”)

(cleaned up). Such a right “must be ‘unambiguously conferred’

by the statutory provision at issue.” Rio Grande, 397 F.3d at

72–73 (quoting Gonzaga,

). To determine if

Congress intended to create a federal right, the Supreme Court

has created a three-pronged test that asks whether (1) the

statutory provision contains “rights-creating language,” (2) the

provision has an “individualized” as opposed to an “aggregate

focus,” and (3) the statute contains another enforcement

20 mechanism through which an aggrieved person can obtain relief.

Gonzaga,

; see Blessing,

.6

In a decision that predates Blessing and Gonzaga, the First

Circuit held that the CWA’s case planning provision is privately

enforceable under § 1983. See Lynch v. Dukakis,

(1st Cir. 1983). The First Circuit acknowledged in Lynch that

“[t]here will be no section 1983 remedy when (1) the federal law

confers no enforceable right, or (2) Congress has foreclosed the

1983 remedy through the act under consideration.”

at 510

(citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers

Ass’n,

(1981)). Focusing on the latter

requirement, the court rejected defendants’ argument that

Congress intended for the Secretary’s authority to withhold or

reduce federal funding under § 671(b) to the exclusive remedy

for violations of § 671(a)(16). See id. at 510-11. Although it

did not expressly grapple with the issue of whether § 671(a)(16)

created an enforceable right, the circuit endorsed the district

court’s “careful” analysis in that case construing the provision

to provide foster children with the right to a case plan. See

6 Gonzaga revised the test announced in Blessing, which required that (1) Congress intended the provision in question to benefit the plaintiff, (2) the right is not so “vague and amorphous” that its enforcement would strain judicial competence, and (3) the provision is “couched in mandatory, rather than precatory, terms.” Blessing,

. The First Circuit has applied the revised test as set forth in Gonzaga. See Rio Grande,

.

21 id. at 510. As the Sixth Circuit later observed, “[i]mplicit in

the Lynch decision was the understanding that the [CWA] bestowed

upon children under state supervised foster care the right to an

individualized case plan and a system for case review and that

those children . . . were free to pursue a § 1983 action which

sought to enjoin the state to comply with its mandated system

for case review.” Scrivner v. Andrews,

(6th

Cir. 1987).

Defendants argue that Lynch is no longer good law in light

of the intervening Supreme Court case law. I disagree. As

Lynch recognized, the key question in determining whether a

statute creates a federal right was – and remains – one of

congressional intent. See

. Although the

Supreme Court has honed the guidelines that aid that analysis,

the holding in Lynch does not rest on an analytical foundation

that is insistent with the framework set forth in Blessing and

Gonzaga. Contrary to defendants’ suggestion, Lynch did not

indicate that a right is presumed to exist unless Congress

indicated otherwise. Instead, the First Circuit held that where

a statute creates a right, there is a presumption that the right

is enforceable under § 1983. See id. That presumption, the

court noted, can be rebutted by a showing that Congress has

foreclosed the § 1983 remedy by creating a comprehensive

enforcement scheme. See id. The Supreme Court endorsed the

22 same presumption in both Gonzaga and Blessing. See Gonzaga,

& n.4; Blessing,

.

Defendants’ position is also at odds with the view of the

Ninth Circuit and several district courts that have recognized

the continued viability of Lynch in the aftermath of Gonzaga.

See Henry A. v. Willden,

(9th Cir. 2012); Sam

M. ex rel. Elliott v. Chafee,

(D.R.I. 2011); Connor B. ex rel. Vigurs v. Patrick,

(D. Mass. 2011). As the court in Sam M.

explained, “[t]he First Circuit’s analysis and conclusion in

Lynch, while it precedes Blessing and Gonzaga, is not

inconsistent with either of those cases or their required

examination of Congressional intent.”

.

Applying the Gonzaga test demonstrates the soundness of the

holding in Lynch that § 671(a)(16) is privately enforceable.

The case planning provision reads:

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . (16) provides for the development of a case plan . . . for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in sections 675(5) and 675a of this title with respect to each such child[.]

(a)(16). Rights-creating language “is readily

discernible” in this provision because it “expresses a clear

mandate by using the term ‘shall’” and “discusses how the state

23 must distribute benefits to each child.” Connor B.,

. “Plainly, these directives are both couched in

mandatory terms and are unmistakably focused on the benefitted

class, i.e., foster children.”

Defendants counter that these directives must be understood

in the context of the prefatory language in § 671(a), which

provides that these requirements are imposed “for a State to be

eligible for payments,”

(a), as well as a related

provision requiring mere substantial compliance with § 671(a).

See 42 U.S.C. § 1320a-2a(b)(3)(A). These provisions, the

argument goes, speak to the State as a regulated participant in

the CWA and contraindicate the language in § 671(a)(16) that

focuses on children as the benefitted class.

Defendants’ argument cannot be squared with an amendment to

the CWA known as the “Suter fix.” In Suter v. Artist M., the

Supreme Court held that § 671(a)(15), which requires a state to

make “reasonable efforts” to facilitate family reunification, is

not privately enforceable in part because the provision is

contained in a section that lists the prerequisites of a state

plan. See

(1992). In response, Congress

enacted the Suter fix, which left the ruling as to § 617(a)(15)

in place but “expressed Congress’s intent not to preclude courts

from determining whether other provisions of the [CWA] allowed

private enforcement actions.” Sam M.,

.

24 Specifically, Congress directed that a provision of the CWA “is

not to be deemed unenforceable because of its inclusion in a

section of this chapter requiring a State plan or specifying the

required contents of a State plan.” 42 U.S.C. § 1320a-2. In

other words, the fact that the case planning provision is a

funding condition imposed on the State as a component of the

State plan cannot negate the rights-creating language in that

provision. See Henry A.,

. Thus, the Suter fix

precludes reliance on the very language and context upon which

defendants base their interpretation of § 671(a)(16).

The second Gonzaga factor likewise weighs in favor of an

enforceable right. By focusing on the needs of “each child” who

has been removed from the family home, as opposed to systemwide

goals, § 671(a)(16) betrays its “individualized” emphasis. See

Gonzaga,

. By contrast, provisions with an

aggregate focus “speak only in terms of institutional policy and

practice” and “are not concerned with whether the needs of any

particular person have been satisfied.”

(cleaned up); see

Henry A.,

(“[T]he reference here to a case plan

‘for each child’ focuses squarely on the protected individual,

rather than an aggregate interest or a regulated entity.”).

Further, the commands of § 671(a)(16) are written in clear and

specific terms, including the case plan definition in § 675(1)

that precisely describes the required contents of each child’s

25 case plan. Thus, “there is no ambiguity as to what the state is

required to do.” Henry A.,

(cleaned up).

The case planning provision also satisfies the third

Gonzaga factor because the CWA provides no alternative mechanism

for an aggrieved child to seek relief. Unlike the statute in

Gonzaga, which allowed individuals to file written complaints

with a federal review board that would trigger an investigation

and potential relief, see

, the CWA does not

provide any such procedure.

In short, the Gonzaga factors demonstrate that the case

planning provision confers an individual right. This gives rise

to a presumption that the right is enforceable via § 1983. See

id. at 284 & n.4. Defendants have not rebutted that presumption

by demonstrating congressional intent to preclude the § 1983

remedy. See id. The Secretary’s authority to determine whether

the State is in substantial compliance with the CWA’s

requirements, including the case planning provision, does not

amount of a comprehensive remedy that is incompatible with

private enforcement. See Lynch,

.

Accordingly, I deny defendants’ motion to dismiss the CWA claim.7

7 Defendants also argue that the existence of an express cause of action to enforce another provision of § 671(a) evinces congressional intent to preclude private enforcement of other provisions of the same section. See

(a)(18) (conferring express private right by stating that “neither the State nor any other entity . . . may . . . delay or deny the

26 C. Disability Discrimination Claims

In their third set of claims, plaintiffs allege that

defendants are discriminating against them in violation of the

ADA and the Rehabilitation Act by failing to ensure that they

receive placements and services in the most integrated settings

appropriate to their needs.8 Plaintiffs base their claims on a

regulation known as the integration mandate and a related

methods of administration regulation. Defendants argue that

both claims fail because disabled children are not segregated

from non-disabled children in DCYF’s custody. Plaintiffs

counter that the regulations prohibit unnecessarily isolating

disabled children from their communities by placing them in

congregate care settings, irrespective of whether non-disabled

children are also placed there.

placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved”). As the Ninth Circuit has explained, however, “because the express cause of action created for § 671(a)(18) is actually broader than § 1983, it does not suggest an intent to limit § 1983 enforcement.” Henry A.,

.

8 The relevant provisions of the Rehabilitation Act mirror the ADA, and the parties’ briefing assumes that the claims under the two statutes are coextensive. Cf. Theriault v. Flynn,

, 48 n.3 (1st Cir. 1998) (“Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act, and is to be interpreted consistently with that provision.”). For ease of reference, I discuss the claims in terms of the ADA.

27 1. Integration Mandate Claims

The ADA provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.”

. The

Department of Justice (“DOJ”) has issued regulations

implementing the ADA’s proscription, including an integration

mandate. That mandate requires a public entity to “administer

services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.”

(d). The preamble to the

regulation defines “the most integrated setting” as “a setting

that enables individuals with disabilities to interact with

nondisabled persons to the fullest extent possible.” 28 C.F.R.

Pt. 35, App. B.

A public entity must make “reasonable modifications in

policies, practices, or procedures” to comply with the

integration mandate.

(b)(7). That

obligation, however, is not absolute. The regulations “allow

States to resist modifications” to the extent such modifications

“entail a fundamental alteration” of the offered services and

programs. Olmstead v L.C. ex rel. Zimring,

(1999) (cleaned up); see

(b)(7).

28 The integration mandate reflects the DOJ’s view “that

unjustified placement or retention of persons in institutions,

severely limiting their exposure to the outside community,

constitutes a form of discrimination based on disability

prohibited by Title II.” Olmstead,

. The

Supreme Court has identified “two evident judgments” in the

mandate.

. The first is that “institutional

placement of persons who can handle and benefit from community

settings perpetuates unwarranted assumptions that persons so

isolated are incapable or unworthy of participating in community

life.”

The second is that “confinement in an institution

severely diminishes the everyday life activities of individuals,

including family relations, social contacts, work options,

economic independence, educational advancement, and cultural

enrichment.”

. In Olmstead, the Supreme Court

concluded that the DOJ’s views embodied in the integration

mandate “warrant respect” in part because “Congress explicitly

identified unjustified segregation of persons with disabilities

as a form of discrimination.”

(cleaned up).

Olmstead ultimately “held that the word ‘discrimination’ as used

in § 12132 includes not only disparate treatment of comparably

situated persons but also undue institutionalization of disabled

persons, no matter how anyone else is treated.” Amundson ex

rel. Amundson v. Wis. Dep’t of Health Servs.,

, 874

29 (7th Cir. 2013) (cleaned up) (citing Olmstead, 527 U.S. at 597–

603).

Following Olmstead, the DOJ released informal guidelines

“directing that the integration mandate be read broadly.”

Steimel v. Wernert,

(7th Cir. 2016). The

DOJ’s guidance specifies that “[i]ntegrated settings are located

in mainstream society.” U.S. Dep’t of Justice, Statement of the

Department of Justice on Enforcement of the Integration Mandate

of Title II of the Americans with Disabilities Act and Olmstead

v. L.C. (June 22, 2011).9 Such settings “offer access to

community activities and opportunities at times, frequencies and

with persons of an individual’s choosing; afford individuals

choice in their daily life activities; and, provide individuals

with disabilities the opportunity to interact with non-disabled

persons to the fullest extent possible.”

In line with the DOJ’s view, the Seventh Circuit has held

that the integration mandate, by its plain terms, must be read

broadly and that the DOJ’s interpretation is entitled to

deference. See Steimel,

. The court reasoned

that the mandate is written in “maximalist language” that

“demands the most integrated setting appropriate, which it

defines as allowing interaction with non-disabled persons to the

9 Available at https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Sept. 9, 2021).

30 fullest extent possible.”

(cleaned up). The integration

mandate thus “logically applies to all settings, not just to

institutional settings” and “bars unjustified segregation of

persons with disabilities, wherever it takes place.”

I

agree with this cogent reasoning.

There can be little question that the plain language of the

integration mandate prohibits the State from providing services

to individuals with disabilities in a setting that is not the

most integrated setting appropriate to their needs. Unless it

could prevail on a fundamental-alteration defense, the State

must administer its foster care services in a manner that

enables plaintiffs to live in such integrated settings. Thus,

to the extent congregate care facilities are not the most

integrated settings appropriate to plaintiffs’ needs, such

placement runs afoul of the integration mandate.

Defendants respond with a narrow reading of the integration

mandate, arguing that it covers only claims by people who have

been completely segregated from their non-disabled counterparts.

Because both disabled and non-disabled children in DCYF’s legal

custody are placed in congregate care facilities based on bed

availability, the argument goes, these facilities are not

isolating the disabled from the non-disabled on the basis of

their disability. Rather than engaging with the text of the

mandate or the DOJ’s interpretation, defendants insist that the

31 statutory grant of authority to the DOJ to implement the ADA’s

anti-discrimination proscription limits the scope of the

integration mandate. Specifically, they argue that because the

ADA only prohibits discrimination by reason of disability, the

integration mandate must be construed to apply only to instances

where the disabled are segregated from the non-disabled based on

their disability.

Defendants’ argument has no merit. As Olmstead recognized,

segregation of the disabled from the community is a core concern

that animates both the ADA and the integration mandate. See

. Further, defendants cite no authority that has

endorsed their rationale, and I have found none. Instead, they

merely cite to a litany of cases involving complete segregation

of the disabled where courts recognized viable integration

mandate claims. See, e.g., Kenneth R. ex rel. Tri-County CAP,

Inc./GS v. Hassan,

(D.N.H. 2013); Eric L.

ex rel. Schierberl v. Bird,

(D.N.H.

1994). But the fact that segregating the disabled from the non-

disabled formed viable integration mandate claims in other cases

does not support defendants’ position that the mandate only

prohibits complete segregation. Simply put, that complete

segregation is illegal does not mean that a lesser form of

segregation, such as isolating disabled children from their

32 communities by placing them in restrictive congregate care

settings, is allowed. The two are not mutually exclusive.

In light of the plain language of the integration mandate

and a lack of authority that supports defendants’ narrow reading

of the regulation, defendants’ challenge to the integration

mandate claims fails.10

2. Methods of Administration Claims

In separate counts of their complaint, plaintiffs allege

that defendants are utilizing methods of administration that

cause plaintiffs to live unnecessarily in institutions, isolated

from their communities. Defendants argue that these claims

should be dismissed because they are duplicative of the

integration mandate claims.

The regulations implementing the ADA prohibit public

entities from utilizing “criteria or methods of administration

. . . that have the effect of subjecting qualified individuals

with disabilities to discrimination.”

(b)(3).

Courts have recognized methods of administration claims as

distinct causes of action. See, e.g., Kenneth R.,

; Day v. District of Columbia,

(D.D.C. 2012). Because the integration mandate speaks broadly

10To the extent defendants argue that the plain language of the integration mandate is ultra vires, they have failed to sufficiently brief this issue, and I decline to take up the issue on my own.

33 of administration of services, however, it encompasses methods

of administration that fail to achieve the most integrated

setting appropriate to plaintiffs’ needs, which is the core

allegation in this case. See

(d). The

duplicative nature of those claims, however, is not a basis for

dismissal because plaintiffs are entitled to plead alternative

theories of liability. See Fed. R. Civ. P. 8(d)(2) (“A party

may set out 2 or more statements of a claim . . . alternatively

. . . .”).

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss

(Doc. No. 29) is granted with respect to plaintiffs’ right to

counsel claim (Count 1) and denied with respect to the remaining

counts.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 9, 2021

cc: Counsel of Record

34