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Case Name M.B. v. Tidball CW-MO-0003
Docket / Court 2:17-cv-04102-NKL ( W.D. Mo. )
State/Territory Missouri
Case Type(s) Child Welfare
Attorney Organization Children's Rights, Inc.
Youth Law Center
Case Summary
On June 12, 2017, M.B., five minors in the Missouri foster care system, through their Next Friends, filed this lawsuit in the Western District of Missouri. The Plaintiffs sued the Interim Director of the Missouri Department of Social Services (“DSS”) and the Director of the Children’s ... read more >
On June 12, 2017, M.B., five minors in the Missouri foster care system, through their Next Friends, filed this lawsuit in the Western District of Missouri. The Plaintiffs sued the Interim Director of the Missouri Department of Social Services (“DSS”) and the Director of the Children’s Division (“CD”) of DSS under 42 U.S.C. § 1983 for alleged substantive due process rights violations, procedural due process rights violations, and a violation of the Federal Adoption Assistance and Child Welfare Act (“CWA”). The Plaintiffs, represented by Children’s Rights, Inc.; National Center for Youth Law; St. Louis University Legal Clinic, and private council, brought action on behalf of a putative class children under eighteen who are or will be placed in the custody of the state of Missouri due to abuse or neglect by their legal guardians. The Plaintiffs sought declaratory and injunctive relief to permanently enjoin the Defendant from subjecting the Class in CD’s custody to allegedly abusive policies and practices.

The Plaintiffs brought three claims: first, violation of the Plaintiffs’ substantive due process rights under the Fourteenth Amendment; second, violation of the Plaintiffs’ procedural due process rights under the Fourteenth Amendment; and third, a violation of the Plaintiffs’ rights under the Federal Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 621 et seq., 670 et seq. In the Plaintiffs’ prayer for relief, they sought a declaration that the Defendants’ failures to maintain a minimally adequate oversight system or to institute procedures to ensure the appropriate administration of medication violated the Plaintiffs’ constitutional rights. The Plaintiffs also ask that the Defendants’ failure to maintain and deliver the Plaintiffs’ complete and updated medical records to foster caretakers violated the Plaintiffs’ statutory rights under the CWA. The Plaintiffs also sought permanent injunctive relief requiring the Defendants to revise its practices related to medical records, promulgate an effective informed consent policy, and develop a secondary review system. Class action allegations were included in the first and amended complaints.

Specifically, the complaint argued that, while the children were in the state’s custody and with foster parents, the state administered or instructed the foster parents to administer to the plaintiffs one or more psychotropic and/or anti-psychotic drugs and failed to ensure that medications were appropriate, safe, and adequately monitored. Because of this, the Plaintiffs argue, the Plaintiff Class had suffered or would suffer substantial and often irreversible harm to their physical, emotional, and/or mental health. On July 3, 2017, Plaintiffs filed an amended complaint.

M.B., who had been in the foster care custody of CD for more than three years, was placed on more than six psychotropic drugs at one time under the supervision of CD. While in CD’s custody, his medications fluctuated wildly while he was moved between eight different placements, including two psychiatric institutions. When M.B. was placed with a licensed therapeutic foster parent, CD did not discuss M.B.’s medications with him, the proper methods to administer the medication, nor its adverse effects. His foster parent was not given an opportunity to ask questions about M.B.’s medication plan nor given information from his medical records or history. Instead, she had to rely on pill bottle label’s and M.B.’s instructions. She began noticing severe adverse effects; M.B. was afraid to go to sleep, would twitch, and was observed with his eyes rolling back in his head. After three weeks in the placement, M.B. threatened his foster parent’s life and was hospitalized. Despite his foster parent’s wish to care for M.B. as his foster parent and her continued involvement in ensuring M.B. receives the care he needs, he was not returned to her home.

After leaving his foster parent’s home, M.B.’s medications steadily increased, and by January 2017, he was taking seven psychotropic medications, including three antipsychotics at the same time. In early 2017, M.B. was moved hundreds of miles away from his foster parent, the only constant adult presence in his life, because the prior facility reportedly couldn’t accommodate his needs. His foster parent visited in April 2017 and observed a completely changed child – once hyperactive, he was now lethargic, slurring, and falling asleep in broad daylight. These are all documented adverse effects of high dosage of different psychotropic drugs. As of filing, M.B. had been moved to a psychiatric hospital.

The other named plaintiffs had similar stories of experiencing adverse effects, likely resulting from poorly administered medication.

On August 21, 2017, the Defendants filed a motion to dismiss the Plaintiff’s complaint for failure to state a claim, arguing the court did not have jurisdiction because the case should be heard in Missouri’s juvenile courts, that the Plaintiffs’ due process claims were insufficient, and that the Plaintiffs’ had no private right of action under the Child Welfare Act based on Supreme Court and Eighth Circuit precedent. On January 8, 2018, Judge Nanette K. Laughrey denied the Defendants’ motion to dismiss regarding Plaintiffs’ substantive due process claim and procedural due process claim. Judge Laughrey granted the Defendant’s motion to dismiss with prejudice regarding Plaintiffs’ CWA violation claim and without prejudice the Plaintiffs’ substantive due process claims relating to informed consent.

The deadline for motion for class certification will be March 9, 2018. Discovery is due by August 17, 2018 and dispositive motions due by September 7, 2018. Bench trial is set for January 14, 2019 in Jefferson City, MO.

Kaley Hanenkrat - 01/19/2018


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Issues and Causes of Action
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Issues
Benefit Source
Adoption Assistance and Child Welfare Act
Constitutional Clause
Due Process
Defendant-type
Jurisdiction-wide
Disability
Mental impairment
General
Aggressive behavior
Assault/abuse by staff
Failure to supervise
Failure to train
Foster care (benefits, training)
Informed consent/involuntary medication
Juveniles
Neglect by staff
Pattern or Practice
Personal injury
Placement in mental health facilities
Record-keeping
Records Disclosure
Staff (number, training, qualifications, wages)
Medical/Mental Health
Intellectual disability/mental illness dual diagnosis
Medical care, general
Medical care, unspecified
Mental health care, general
Mental health care, unspecified
Self-injurious behaviors
Suicide prevention
Mental Disability
Mental Illness, Unspecified
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. § 620 et seq.
Defendant(s) Missouri
Plaintiff Description Plaintiffs are five minors in the foster care custody of the state of Missouri. Plaintiffs are seeking class certification for all children under the age of eighteen who are or will be placed in the foster care custody of the state of Missouri following reports that they have suffered child abuse or neglect.
Indexed Lawyer Organizations Children's Rights, Inc.
Youth Law Center
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2017
Case Ongoing Yes
Additional Resources
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  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

Docket(s)
2:17-cv-04102-NKL (W.D. Mo.)
CW-MO-0003-9000.pdf | Detail
Date: 06/22/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 1]
CW-MO-0003-0001.pdf | Detail
Date: 06/12/2017
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 22]
CW-MO-0003-0002.pdf | Detail
Date: 07/03/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 91] (W.D. Mo.)
CW-MO-0003-0003.pdf | Detail
Date: 01/08/2018
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 168] (W.D. Mo.)
CW-MO-0003-0004.pdf | Detail
Date: 05/29/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Laughrey, Nanette Kay (W.D. Mo., E.D. Mo.)
CW-MO-0003-0003 | CW-MO-0003-0004 | CW-MO-0003-9000
Plaintiff's Lawyers Ammann, John J. (Missouri)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Bartosz, Michael [Sara Michelle] Sara (New York)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Dixon, Stephen (New York)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Fahner, Daniel T. (Illinois)
CW-MO-0003-9000
Finch, Aaron Hirsh (New York)
CW-MO-0003-9000
Frizell, Catherine (New York)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Gretter, Elizabeth Pitman (New York)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Grimm, William L. (California)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Juneja, Poonam (California)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
McGuinness, Erin Geloff (New York)
CW-MO-0003-9000
Rosenthal, Danielle (New York)
CW-MO-0003-9000
Schutte, Scott T. (Illinois)
CW-MO-0003-9000
Welch, Leecia (California)
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Defendant's Lawyers Bangert, Ryan Lee (Missouri)
CW-MO-0003-9000
Bremer, Jonathan Gilbert (Missouri)
CW-MO-0003-9000
Dean, David D. (Missouri)
CW-MO-0003-9000
Elsbury, Laura E. (Missouri)
CW-MO-0003-9000
Keller, Russell J. (Missouri)
CW-MO-0003-9000
Quinlan, Michael D. (Missouri)
CW-MO-0003-9000

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