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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