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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 Division ( ... 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). Represented by Children’s Rights, Inc., National Center for Youth Law, St. Louis University Legal Clinic, and private council, plaintiffs sued on behalf of a putative class of 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 complaint sought declaratory and injunctive relief to permanently enjoin the Defendants from subjecting class members to allegedly abusive policies and practices.

Background
The lawsuit 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. Plaintiffs 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 class had suffered or would suffer substantial and often irreversible harm to their physical, emotional, and/or mental health.

Specific example of abused alleged
The named plaintiff 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.

Procedural timeline
On July 3, 2017, the plaintiffs filed an amended complaint. On August 21, 2017, the state filed a motion to dismiss the 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 due process claims were insufficient, and that 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 motion to dismiss with prejudice regarding Plaintiffs’ CWA violation claim and without prejudice the Plaintiffs’ substantive due process claims relating to informed consent. 2018 WL 327767.

For several months, the parties engaged in discovery and depositions. On March 16, 2018, the plaintiffs moved for class certification. On July 19, 2018, Judge Laughrey certified a class of plaintiffs consisting of "all children in Children's Division foster care custody who presently are, or in the future will be, prescribed or administered one or more psychotropic medications while in state care." 327 F.R.D. 271. The defendants appealed the order granting class certification to the Eighth Circuit Court of Appeals on August 22, 2018 (case number 18-2798). Since the original defendant retired in July 2018, the appellant replaced him with Ms. Lester.

On October 29, 2018, the defendant’s motion to stay the lawsuit pending appeal was denied by Judge Laughrey under seal. 2018 WL 5504178. Several months of mediation and negotiations followed.

On May 30, 2019, the parties reported having reached a settlement. On July 8, the parties filed a joint motion for preliminary approval of a class action settlement. Parties also separately notified the Eighth Circuit of the potential settlement, and the Eighth Circuit issued an order on July 9 staying the August 2018 appeal of class certification until the settlement was resolved. On July 15, Judge Laughrey granted preliminary approval of settlement.

On November 6, 2019, the parties filed a joint motion for final approval of class action settlement, with relevant documents regarding discovery and plaintiffs' private information kept under seal. A fairness hearing was held before Magistrate Judge Lajuana M. Counts on November 20, 2019 and the judge issued a Report and Recommendation on December 4 indicating that the settlement should be approved and the case be dismissed with prejudice.

The settlement agreement included policy and procedural commitments relating to the defendant’s (a) training of case management staff and resource provider, (b) providing medication monitoring, mental health assessment, medical examinations, and concurrent non-pharmacological treatment, (c) maintaining medical records, including efforts to build system and reporting capabilities and to comply with CD policy on record collection and distribution, (d) secondary review of designated prescription of psychotropic medications by a child and adolescent psychiatrist, (e) obtaining informed consent to the administration of psychotropic medications, (f) appointing a Psychotropic Mediation Advisory Committee to provide professional and technical consultation and policy advice on issues related to psychotropic medication, and (g) developing excessive dosage guidelines based on advice from and consultation with medical and clinical experts.

On December 5, Judge Laughrey adopted the Report and Recommendations and granted the parties’ motion for final approval of the class action settlement.

The Court retained jurisdiction for purpose of enforcement. The settlement agreement defined specific exit criteria, and the state is entitled to exit the agreement once exit criteria have been met for three consecutive six-month reporting periods. The parties agreed to jointly seek an order terminating court jurisdiction over the agreement when appropriate, though the state can also do so on its own motion.

Plaintiffs filed a motion for $4,027,882.78 in attorneys' fees and costs. The parties disputed as to the hourly rate used to calculate attorneys' fees. On April 3, 2020, the court issued an order granting in part and denying in part the original request, adjusting some of the attorneys' billing rates and hours tracked to arrive at a final award of $3,386,558.81. 2020 WL 1666159.

Current status
There is nothing in the district court docket showing any disputes over enforcement. After the settlement was approved, the Eighth Circuit signed off on the state's voluntary dismissal of the (previously stayed) appeal. On April 28, 2020, Defendants filed a new appeal of the attorneys' fees award. It is pending.

Kaley Hanenkrat - 01/19/2018
Nina Orteza - 10/29/2018
Sichun Liu - 01/25/2020
Hetali Lodaya - 05/31/2020


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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
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Content of Injunction
Monitor/Master
Monitoring
Recordkeeping
Remedial education
Reporting
Training
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 Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2019 - n/a
Filed 06/12/2017
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  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: 04/30/2020
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]
Order [ECF# 183] (W.D. Mo.)
CW-MO-0003-0005.pdf | Detail
Date: 07/19/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting Preliminary Approval of Settlement Agreement, Setting Hearing, and Directing Class Notice [ECF# 282] (W.D. Mo.)
CW-MO-0003-0006.pdf | Detail
Date: 07/15/2019
Source: PACER [Public Access to Court Electronic Records]
Joint Settlement Agreement [ECF# 304-1]
CW-MO-0003-0008.pdf | Detail
Date: 11/06/2019
Source: PACER [Public Access to Court Electronic Records]
Report and Recommendation [ECF# 316]
CW-MO-0003-0007.pdf | Detail
Date: 12/04/2019
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 326] (2020 WL 1666159) (W.D. Mo.)
CW-MO-0003-0009.pdf | WESTLAW | Detail
Date: 04/03/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Counts, Lajuana M. Court not on record [Magistrate] show/hide docs
CW-MO-0003-0007
Laughrey, Nanette Kay (E.D. Mo., W.D. Mo.) show/hide docs
CW-MO-0003-0003 | CW-MO-0003-0004 | CW-MO-0003-0005 | CW-MO-0003-0006 | CW-MO-0003-0008 | CW-MO-0003-0009 | CW-MO-0003-9000
Plaintiff's Lawyers Ammann, John J. (Missouri) show/hide docs
CW-MO-0003-0001 | CW-MO-0003-0002 | CW-MO-0003-9000
Bartosz, Michael [Sara Michelle] Sara (New York) show/hide docs
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Bartosz, Sara Michelle (New York) show/hide docs
CW-MO-0003-0008
Dixon, Stephen (New York) show/hide docs
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Fahner, Daniel T. (Illinois) show/hide docs
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Finch, Aaron Hirsh (New York) show/hide docs
CW-MO-0003-0008 | CW-MO-0003-9000
Frizell, Catherine (New York) show/hide docs
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Gerard, Daniele (New York) show/hide docs
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Gretter, Elizabeth Pitman (New York) show/hide docs
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Grimm, William L. (California) show/hide docs
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Juneja, Poonam (California) show/hide docs
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King, Jonathan D (Illinois) show/hide docs
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McGuinness, Erin Geloff (New York) show/hide docs
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Pitts, Freya E. K. (California) show/hide docs
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Pitts, Freya E. K. (California) show/hide docs
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Rosenthal, Danielle (New York) show/hide docs
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Schutte, Scott T. (Illinois) show/hide docs
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Welch, Leecia (California) show/hide docs
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Defendant's Lawyers Allen, Scotty L (Missouri) show/hide docs
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Bangert, Ryan Lee (Missouri) show/hide docs
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Bremer, Jonathan Gilbert (Missouri) show/hide docs
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Dean, David D. (Missouri) show/hide docs
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Elsbury, Laura E. (Missouri) show/hide docs
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Keller, Russell J. (Missouri) show/hide docs
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Krispin, Eileen Ruppe (Missouri) show/hide docs
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Morgan, Jeremiah J. (Missouri) show/hide docs
CW-MO-0003-0008
Pennycuff, Melanie (Missouri) show/hide docs
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Quinlan, Michael D. (Missouri) show/hide docs
CW-MO-0003-9000

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