A federal judge ruled this month that a lawsuit involving the 2012 death of Marie Freyre can go forward, denying various child welfare employees’ motions to dismiss. Judge James Whittemore (Tampa) ruled on December 5 that the mother stated valid claims that the child welfare employees violated her rights under the Americans with Disabilities Act, the Rehabilitation act, section 1983 for violation of her right to care for her daughter, and most surprisingly under section 1985 for conspiracy to violate her constitutional rights. (Note: I was unable to find a public copy of the order online.)
The mother alleges that in April of 2012, the defendants discriminated against her on the basis of her disabilities, failed to implement in-home services that would have allowed reunification, moved her child 250 miles away to Miami without her consent, and prevented her access to her daughter during the trip to Miami in violation of a court order. The child, Marie Freyre, died within 12 hours of her arrival in Miami.
Two things stand out in this order.
First is the survival of the section 1985 conspiracy claims. A 1985 claim requires “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States .” The conspiracy here was based upon staffings, communications, and joint actions taken by various professionals involved in the case, including administrators, CPIs, and State Attorneys. The defendants tried to raise their defenses early, that they were only trying to protect the child’s well-being. The judge left those arguments for a later date:
Taking Freyre’s well-pleaded allegations as true, as they must be at this stage of the case, she sufficiently alleges a class-based discriminatory animus behind Defendants’ actions. While Defendants argue they were not motivated by animus, but by a concern for M.A.F.’s well-being, the only question is whether Freyre’s allegations are sufficient to state a claim under § 1985(3). Freyre has alleged “assertedly benign (though objectively invidious) discrimination” against parents with disabilities resulting in the separation of her family, which is sufficient to state a claim. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). 11 11 This determination should not be construed as a comment on the merits of Freyre’s claim.
Defendants further argue that the animus Freyre alleges is directed not at the disabled as a class, but only at physically handicapped parents who are unable to care for their children. Defendants’ attempt to narrow Freyre’s claim is unavailing. As a disabled parent, Freyre states a claim when she alleges a conspiracy by state actors to deny her custody, visitation, and reunification with her child based solely on her disability. See Fitzpatrick v. Town of Falmouth, 321 F.Supp. 119, 124 (D.Me.2004) (allegations of conspiracy between school administrators and town to deny autistic home-schooled child access to public school playground sufficient to overcome motion to dismiss).
Second is the survival of the ADA and RA claims. Freyre alleges that the State discriminated against her as a parent due to her inability to lift the child, sending the child to Miami instead of providing support in her home to help her with daily care.
Freyre has sufficiently alleged at least “indirect” harm flowing from the actions of each Institutional Defendant to satisfy the traceability requirement. For HKI, Freyre alleges that it ceased attempting to find 24–hour care for M.A.F. despite a court order, relying on a statement from Nurse Emerson that HKI knew was false. (Dkt. 71 ¶¶ 50, 54–58). Freyre also alleges that HKI facilitated M.A.F.’s placement and transfer to the nursing home in Miami. (Id. ¶¶ 71–72, 76, 86). While these actions may have only “indirectly” led to M.A.F.’s death, no more is required to satisfy the traceability requirement. Focus on the Family, 344 F.3d at 1273.
The vast majority of cases in child welfare are due to parents’ poverty, substance abuse, or some mental or emotional disability. Current child welfare doctrine requires only “reasonable efforts” by the State to help a parent “remedy the circumstances” that brought the case in. That vague standard creates a race toward the bottom, in that “reasonable” is not defined and in practice becomes “whatever we normally do on cases like these.” The standard also sets the complete end of state intervention (through DCF) as the measure of success, and creates a ground for termination of parental rights if state intervention cannot be ended within a year. Incorporating ADA and RA doctrines into that system could create stronger individual accommodation requirements by the state as a whole and take some of the (often unreasonable) burdens off of impoverished and disabled parents. The conspiracy doctrines discussed above could demand responsibility from other state agencies (DCF+APD+ACHA+…) to more actively support families at risk of losing their children due to disability, poverty, or other factors outside of their control and within the orbit of the supporting agencies.
At this stage of the litigation the facts alleged by the plaintiff are assumed to be true while legal issues are debated. Defenses based on whether the acts of removing the child from the home or placing the child in Miami were reasonable or justified are left for later hearings, and the ultimate fate of Judge Whittemore’s legal opinions are unknown until the inevitable appeals play out.