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.

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 Nanette K. 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." The defendants appealed the order granting class certification to the Eighth Circuit Court of Appeals on August 22, 2018.

Although Judge Nanette K. Laughrey ordered the parties to engage in mediation on June 14, 2018, these attempts appear to have been unsuccessful, given the continuing litigation.

As of October 29, 2018, the case is ongoing in both appellate and district court.

Kaley Hanenkrat - 01/19/2018
Nina Orteza - 10/29/2018


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