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B.K. v. Snyder

United States Court of Appeals, Ninth Circuit

April 26, 2019

B.K., by her next friend Margaret Tinsley; B.T., by their next friend Jennifer Kupiszewski; A.C.-B., by their next friend Susan Brandt; M.C.-B., by their next friend Susan Brandt; D.C.-B., by their next friend Susan Brandt; J.M., by their next friend Susan Brandt, Plaintiffs-Appellees,
v.
Jami Snyder, in her official capacity as Director of the Arizona Health Care Cost Containment System, Defendant-Appellant. B.K., by her next friend Margaret Tinsley; B.T., by their next friend Jennifer Kupiszewski; A.C.-B., by their next friend Susan Brandt; M.C.-B., by their next friend Susan Brandt; D.C.-B., by their next friend Susan Brandt; J.M., by their next friend Susan Brandt, Plaintiffs-Appellees,
v.
Gregory McKay, in his official capacity as Director of the Arizona Department of Child Safety, Defendant-Appellant.

          Argued and Submitted January 17, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 2:15-cv-00185-ROS, No. 2:15-cv-00185-ROS Roslyn O. Silver, District Judge, Presiding.

          Robert L. Ellman (argued) and David Simpson, Ellman Law Group LLC, Phoenix, Arizona; Nicholas D. Acedo (argued) and Daniel P. Struck, Struck Love Bojanowski & Acedo P.L.C., Chandler, Arizona; Daniel P. Quigley, Cohen Dowd Quigley P.C., Phoenix, Arizona; Logan T. Johnston, Johnston Law Offices, Phoenix, Arizona; for Defendants-Appellants.

          Harry Frischer (argued) and Aaron Finch, Children's Rights Inc., New York, New York; Anne C. Ronan and Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Arizona; Andrea J. Diggs, Thomas D. Ryerson, Joel W. Nomkin, Shane R. Swindle, and Joseph E. Mais, Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-Appellees.

          Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania, for Amici Curiae Juvenile Law Center, Bluhm Legal Clinic, Center for Children's Law & Policy, Center for Public Representation, Children & Family Justice Center, Children's Advocacy Institute, Children's Defense Fund New York, Civitas Childlaw Center, Columbia Legal Services, Disability Rights Pennsylvania, Harvard Law School Child Advocacy Program, Impact Fund, National Association of Counsel for Children, National Center for Youth Law, National Health Law Program, National Women's Law Center, Nebraska Appleseed, Robert F. Kennedy Human Rights, Rutgers School of Law-Camden Children's Justice Clinic, Washington Lawyers' Committee for Civil Rights and Urban Affairs, and Youth Law Center.

          Corene T. Kendrick, Prison Law Office, Berkeley, California; Amanda W. Shanor and David C. Fathi,

          American Civil Liberties Union Foundation, Washington, D.C.; Kathleen E. Brody, ACLU Foundation of Arizona, Phoenix, Arizona; for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Arizona, and Prison Law Office.

          Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein LLP, Nashville, Tennessee; Katherine I. McBride, Jason L. Lichtman, and Jonathan D. Selbin, Lieff Cabraser Heimann & Bernstein LLP, New York, New York; Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, California; for Amici Curiae Administrative Law, Civil Procedure, and Federal Courts Professors.

          Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Lynn S. Adelman, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed in part and vacated in part the district court's class certification order and remanded for further proceedings in an action brought by children in the Arizona foster care system against directors of the Arizona Department of Child Safety and the Arizona Health Care Cost Containment System alleging that Arizona's state-wide policies and practices deprived them of required medical and other services, and that this subjected them to a substantial risk of harm and violated the Medicaid Act.

         Plaintiffs alleged that defendants' state-wide policies and practices violated their rights to due process under the Fourteenth Amendment, family integrity under the First, Ninth, and Fourteenth Amendments, and medical services under the Medicaid Act. The district court certified a General Class of all children who are or will be in the Department of Child Safety's custody due to a report or suspicion of abuse or neglect. The district court further certified two subclasses: (1) a Non-Kinship Subclass consisting of members in the General class who are not placed in the care of an adult relative or person with a significant relationship with the child; and (2) a Medicaid Subclass consisting of all members of the General class who were entitled to services under the federal Medicaid statute.

         Affirming the district court's certification of the General Class, the panel first held that class representative B.K. had standing to press her due process claims given that she has serious medical diagnoses, presented evidence that she has not received adequate medical care or appropriate placements in the past and presented evidence of a risk of similar future harms. The panel then held that the district court did not err or abuse its discretion in its ruling that the class had commonality and typicality and that uniform injunctive relief was available. The panel concluded that the district court properly grounded its commonality determination in the constitutionality of statewide policies and practices that could be properly litigated in a class setting. Addressing the typicality requirement, the panel held that B.K. had demonstrated with evidence that she was subject to statewide policies and practices that applied to every member of the class. Finally, the panel held that a single, indivisible injunction ordering state officials to abate those policies and practices would provide relief to each member of the class, thus satisfying Rule 23(b)(2).

         Affirming the district court's certification of the Non-Kinship Subclass, the panel held that B.K. had standing to bring the subclass's due process claims. The panel then held that by identifying certain statewide practices, such as excessive use of emergency shelters and group homes, the district court satisfied the commonality, typicality, and uniformity of injunctive relief factors. The panel concluded that the district court would be able to determine whether defendants have an unconstitutional practice of placing children in substantial risk of harm by evaluating these practices as a whole, rather than as to each individual class member.

         Addressing the Medicaid Subclass, the panel held that the materials in the record supported B.K.'s standing. The panel held that the district court abused its discretion by certifying the Medicaid Subclass based on an apparent misconception of the legal framework for such a claim. The panel noted that in the due process context relevant to the General and Non-Kinship Subclasses, proving a substantial risk of harm was all that was necessary to prove a claim. A claim under the Medicaid Act, however, must be based on actions that actually violate the Act's requirements. The panel further determined that the district court failed to make a factual finding that every subclass member was subject to an identical significant risk of a future Medicaid violation that would support injunctive relief. The panel therefore vacated the Medicaid Subclass and remanded for further proceedings.

         Concurring in part and dissenting in part, Judge Adelman concurred in all parts of the majority's opinion except the portion addressing the Medicaid Subclass. Judge Adelman stated that the answer to the legal question of whether exposure to a risk of harm violates the Medicaid statute did not affect class certification in this case, where the class sought only injunctive relief. Moreover, Judge Adelman stated that the district court made findings of fact that supported its decision to certify the Medicaid Subclass, and those findings were not clearly erroneous.

          OPINION

          WALLACE, CIRCUIT JUDGE:

         The Arizona Department of Child Safety and the Arizona Health Care Cost Containment System are responsible for delivering health care and other services to the thousands of children in the Arizona foster care system. In 2015, ten of those children brought an action against the directors of these agencies for alleged violations of the federal Constitution and the Medicaid Act, alleging that Arizona's state-wide policies and practices deprived them of required medical services, among other things, and thus subjected them to a substantial risk of harm. Based on these claims, the district court certified a class of all children who are or will be in the Department of Child Safety's custody, along with two subclasses. The Director of the Department of Child Safety and the Director of the Health Care Cost Containment System timely sought review of those class certification decisions, and we accepted their interlocutory appeals. We have jurisdiction under 28 U.S.C. § 1292, and we affirm in part, vacate in part, and remand for further proceedings.

         I.

         A.

         Gregory McKay is the Director of the Arizona Department of Child Safety (DCS). DCS's primary purpose is to "protect children," by investigating reports of abuse and neglect, establishing foster care placements, working with law enforcement, maintaining permanency, and providing treatment to families. Ariz. Rev. Stat. (ARS) § 8-451. Pursuant to DCS's statutory framework, DCS investigates reports of threats to child safety and may remove children from their homes by superior court order, consent of the child's guardian, or where "clearly necessary to protect the child because exigent circumstances exist." ARS § 8-821(A), (D). DCS may also petition to commence dependency proceedings in Arizona state court by alleging that a child is dependent. ARS § 8-841(A). On the filing of such a petition, the Arizona court may issue "temporary orders necessary to provide for the safety and welfare of the child," ARS § 8-841(F), and assumes continuing jurisdiction "over all matters affecting dependent children," In re Appeal in Maricopa Cty. Juvenile Action No. JD-6236, 874 P.2d 1006, 1008 (Ariz.Ct.App. 1994). The court then holds a dependency hearing to adjudicate whether the child is dependent. ARS § 8-844. If the child is dependent, the court will typically place the child in DCS's legal custody, triggering DCS's legal obligations to the child. See, e.g., Oscar F. v. Dep't of Child Safety, 330 P.3d 1023, 1025 (Ariz.Ct.App. 2014) ("Since the day after the dependency petition was filed, the children have been temporary wards of the Court, committed to the legal care, custody and control of DCS" (alterations and internal quotation marks omitted)).

         Jami Snyder is Director of the Arizona Health Care Cost Containment System (AHCCCS). AHCCCS administers Arizona's Medicaid program, which provides medical services to various categories of individuals within the state. Medicaid is "a cooperative federal-state program through which the federal government provides financial assistance to states so that they can furnish medical care to low-income individuals." Cal. Ass'n of Rural Health Clinics v. Douglas, 738 F.3d 1007, 1010 (9th Cir. 2013). Among those individuals are foster children within the state's care. See 42 U.S.C. § 1396a(a)(10)(A)(i)(I). Medicaid is jointly financed by the federal and state governments and is administered by state governments through state "plans," which are approved by the federal Secretary of Health and Human Services. Cal. Ass'n of Rural Health Clinics, 738 F.3d at 1010. Once a state joins the Medicaid system, it must comply with federal statutory and regulatory requirements to ensure that its plan provides all required healthcare services. Id. These requirements may be court-enforced through a private claim by eligible Medicaid beneficiaries, when such a claim exists. Id. at 1013. We refer to McKay and Snyder collectively as "the Directors" unless the context otherwise requires, without losing sight of their unique statutory duties and the distinct claims asserted against each.

         The ten original plaintiffs in this case were foster children in Arizona's care. They initiated this action in February 2015, alleging that the Directors had state-wide policies and practices that violated their rights to due process under the Fourteenth Amendment, family integrity under the First, Ninth, and Fourteenth Amendments, and medical services under the Medicaid Act.[1] The plaintiffs' original goal was to maintain a class action with themselves as class representatives, but over the next two-plus years of litigation eight plaintiffs were adopted or otherwise removed from the foster care system, leaving only two at the time of class certification. Since class certification, moreover, an additional plaintiff appears to have aged out of the proposed classes. We therefore discuss plaintiff B.K. as the representative class member.[2]

         B.K. alleges that that she has been deprived of necessary health care, separated from her siblings, deprived of family contact, and placed in inappropriate care environments. B.K. alleges that these deprivations amount to violations of her right to due process under the Fourteenth Amendment and of her right to reasonably prompt early and periodic screening, diagnostic, and treatment services (EPSDT services) under the Medicaid Act. B.K. also alleges that these violations are caused by specified state-wide policies and practices.

         B.

         In November 2016, the named plaintiffs sought class certification for a class of all children who are or will be in DCS's custody, along with a subclass of children who, while in DCS's custody, were not placed in the care of an adult relative or person with a significant relationship with the child, and a subclass of children eligible for Medicaid. The named plaintiffs supported their motion for class certification with their complaint; raw data generated by DCS to show how DCS was failing to deliver timely health care to foster children; expert reports by Steven Blatt, MD, Marci White, MSW, and Arlene Happach, a psychologist, who declared that Arizona's foster care system put children in grave risk of harm by failing to provide adequate care; and independent investigative reports, deposition testimony, and DCS/AHCCCS policy and educational materials. B.K. also supported her claim as class representative with excerpts from her DCS file that, if interpreted and credited as the plaintiffs contended, could tend to show she has been kept in inappropriate home settings and has serious unmet mental and physical healthcare needs.

         B.K. asserted two due process claims on behalf of the general class, one due process claim on behalf of the non-kinship subclass, and one Medicaid Act claim on behalf of the Medicaid subclass. The district court analyzed the class certification motion through the lens of these claims. In September 2017, the district court certified the following classes:

General Class: All children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect.
Non-Kinship Subclass: All members in the General Class who are not placed in the care of an adult relative or person who has a significant relationship with the child.
Medicaid Subclass: All members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute.

         The district court reasoned that the due process claims could be litigated class-wide as to the General Class and Non-Kinship Subclass by answering whether the alleged statewide policies and practices were unconstitutional, following our reasoning in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014). The district court explained that:

Even if health issues may differ, every child in the [DCS] custody is necessarily subject to the same medical, mental health, and dental care policies and practices of the [DCS] in the same way that the inmates in Parsons were subjected to the policies and practices of the ADC [Arizona Department of Corrections]. Any one child could easily fall ill, be injured, need treatment, require a diagnostic, need emergency care, crack a tooth, or require mental health treatment. And any child in the foster care system would be subjected to the [DCS] policies regarding placement decisions. Thus, every single child in the foster care system faces a substantial risk of serious harm if [DCS] policies and practices fail to adhere to constitutional requirements.

         The district court followed similar reasoning to certify the Medicaid Subclass, explaining that:

Similar to the constitutional claims, central to the claim here is the question of whether practices by [DCS] and AHCCCS failed to adhere to the Medicaid statute. Even if a child's specific medical diagnosis may differ, however, whether the foster care system's practices establish a pattern of non-compliance arise from statewide policies and practices by [DCS] and AHCCCS.

         The district court also held that class certification comported with Federal Rule of Civil Procedure 23(a)(1), (3)-(4) and 23(b)(2).

         The Directors timely sought interlocutory review of the district court's class certification order, and we stayed proceedings in the district court pending our review. The only issue on appeal is whether the three classes were properly certified, including whether the named plaintiffs and class members have standing to bring their claims.

         II.

We review a district court's class certification decision for abuse of discretion. An error of law is a per se abuse of discretion. Accordingly, we first review a class certification determination for legal error under a de novo standard, and if no legal error occurred, we will proceed to review the decision for abuse of discretion. A district court applying the correct legal standard abuses its discretion only if it (1) relies on an improper factor, (2) omits a substantial factor, or (3) commits a clear error of judgment in weighing the correct mix of factors. Additionally, we review the district court's findings of fact under the clearly ...

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