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Child Welfare Act Creates Private Right to Foster Care Payments

Posted on Friday, April 28, 2017

According to a recent (1-27-2017) opinion of the US Court of Appeals, 6th Circuit (D.O.; A.O.;R.O. v  Glisson, Sec. Cabinet for Health and Family Services, ___US____, No.16-5461 (6th Circuit 2017), reversing a district court’s decision, the Federal Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. Sec. 1983.


FACTS: 
As is often the case with important cases, the facts are simple. In 2012, Kentucky’s Health and Family Services brought a Dependency, Neglect and Abuse proceeding against the mother of two boys. The mother stipulated to the charges and the boys were placed in foster care. Plaintiff R.O, the mother’s aunt, sought and secured custody of the children. In Sept. of 2014, the family court closed the action and granted joint custody to both the mother and the aunt, although the boys continued living with the aunt.
R.O. filed a motion with family court seeking foster care maintenance payments. The family court declined to rule so RO turned to the state court arguing:
·            That the federal Child Welfare Act required the state to provide maintenance payments and
·            Failure to make payments violated the Constitution’s Equal Protection and Due Process Clauses.
The Cabinet removed the case to federal court and filed a motion to dismiss. The district court granted the Cabinet’s motion, reasoning that:
·            The Child Welfare Act doesn’t provide private enforceable rights,
·            The family lacked a property interest in the payments and
·            Kentucky’s scheme rationally distinguished between relative and non-relative foster care providers.

The family appealed.
The appellate court cited three sections of the Child Welfare Act, which supports state-run foster care and adoptions for children removed from low income families. First, to be eligible for federal funds, a state must submit a 35-point plan to the Secretary of Health and Human Services. Second, the plan must provide foster care maintenance payments for each child and, finally, once the moneys are spent, the state can be reimbursed by the federal government.

The 6th Circuit saw as the central issues on appeal:
·             Whether the Act confers upon foster families a private right to foster care maintenance payments; and
·             Whether that right is enforceable under sec. 1983.

The 6th Circuit held that the Act confers upon families an individually enforceable right to foster care maintenance payments because:
·             The Act mandates payments “on behalf of each child.” 42 U.S.C sec.672(a)(1),
·             The Act confers a monetary entitlement upon qualified foster families and includes an itemized list of expenses, and
·         The Acts “shall make” language “imposes a binding obligation on the States.”

Both the Supreme Court and the Sixth Circuit have found that laws phrased in the active voice, with the state as the subject, confer individually enforceable rights.
Enforcement under Sec 1983:
Having shown that the statute creates a private there is a rebuttable presumption that the right is enforceable under sec. 1983. Stating that “Absent resort to sec 1983, foster families possess no federal mechanism to ensure compliance with the Act,” the court held that the “Act confers families with an individual right to foster care maintenance payments enforceable under Sec.1983.
Are the Plaintiffs entitled to maintenance payments?
Yes. Section 672(a) restricts the class of children entitle to benefits in two ways; (1) the child must be in Cabinet’s custody—once placed in permanent guardianship, no payments are required and (2) child must be placed in an approved “foster family home.”

The facts supporting the payment:
·             The children were not discharged from the Cabinet’s care because the “order of permanent custody was not on the required form AOC-DNA 9 according to Kentucky law,”
·             The Cabinet didn’t provide evidence that the family court held a permanency hearing or discharged the children from the Cabinet’s care.

Is the aunt’s home an approved “foster family home?”
·             The law provides for two types of foster families—licensed foster homes that provide care for unrelated children and foster homes that provide care for relative children,
·             The Cabinet approved R.O. to be a foster parent

Where the Cabinet fails to make maintenance payments on the distinction between relative and non-relative foster care providers, it violates federal law. Rather any home the State approves as meeting its licensing standards falls within the definition. If Kentucky is denying benefits because the aunt is related to the children, it is violating federal law.
The court reversed the district court’s decision. Upon remand the court shall determine whether the Cabinet maintains responsibility for the children’s placement and care. If the Kentucky discharges the children, the district court shall dismiss the case. If not, the court shall award foster care maintenance payments.

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MCOA Upholds Lower Court Judgment Granting WSU Vet Tech Program Director $300,000 in Age Discrimination Lawsuit


The Michigan Court of Appeals, in its decision (Hrapkiewiczv WSU Bd of Directors, No, 328215, 330189) affirming two lower court judgments granting money damages and attorney fees in an age discrimination case under the Elliot-Larsen Civil Rights Act (ELCRA. MCL 37.2101), reviews the elements needed to prove an age discrimination case. The dissent by Hon. Debra A. Servitto argues that because age was not discussed by the decision-makers, there was no prima facie case and the lower court decision should be reversed.
FACTS:
Karen Hrapkiewicz, age 62, was fired from her positions as Wayne State University Division of Laboratory Animal Resources (DLAR) Director, clinical vet for the animals and course instructor in the Vet Tech program on Feb. 28, 2011. Over the 30 years that Hrapkiewicz had been employed at WSU her work was rated as “excellent,” although her supervisor (Dr. Merlin Ekstrom) acknowledged that she acted disrespectfully towards others at times, had “interpersonal conflicts” with staff at times and was sometimes difficult to supervise.
Ekstrom retired and Dr. Lisa Brossia became Hrapkiewicz’s supervisor in the fall of 2010. Brossia spoke of creating a professional development plan for Hrapkiewicz but never presented it to her. Matters came to a head in Feb. 2011 when Hrapkiewicz allowed students to remain on campus to take an exam on a day the campus was closed due to the weather. This incident combined with other disciplinary matters led to the decision to “separate” Hrapkiewicz from her employment. At the meeting with her, she was offered the opportunity to retire or be fired. She chose to be fired and filed the lawsuit based on age discrimination.
According to Brossia and others involved in the decision, age was never discussed as part of the reasons for termination. Hrapkiewicz’s position as director of DLAR was filed by Susan Dibbley, age 48. Hrapkiewicz admitted in deposition that she wasn’t told that she was being fired due to age, but that Brossia made comments suggestive of age-related animus, specifically that she did things in a “set manner” and was “old school.”
Following a 5-day trial, the lower court upheld the jury decision in response to a motion for a directed verdict by WSU stating that “the Court finds that [Hrapkiewicz] has presented a sufficient amount of testimony to overcome a Motion for Directed Verdict at this time,” further reasoning that it was a question of fact for the jury to determine whether there was evidence of age-related animus.
Hrapkiewicz was awarded $300,000 in past economic damages and costs and attorney fees totaling $265,583.98.




Analysis:

The court began with an analysis of the elements necessary to establish a prima facie case of age discrimination. The plaintiff must prove, by a preponderance of the evidence, that:
  •         She was a member of the protected class;
  •        She suffered an adverse employment action;
  •        She was qualified for the position; and
  •        She was replaced by a younger person. [Lytle v Malady, 458 Mich 153, 177; 579 NW2d 906 (1998)]
It went on to say that “The final element—replacement by a younger person—is a prima facie element in both workforce reduction cases and those where workforce reduction is not at issue.”
The court said the only prima facie element at issue was #4, that she was replaced by a younger person since she is a member of the protected class because of her age, she suffered an adverse employment action—she was fired and she was qualified for her position since she received “excellent” ratings for 30 years.
The court concluded that because Dibbley was “reassigned” to assume the majority of Hrapkiewicz’s duties, Hrapkiewicz was replaced by a younger person thus satisfying the final element for a prima facie case. It upheld the lower court decision.
The dissent, written by Judge Servitto, referred to a US Supreme Court case McDonnell Douglas Corp v Green, 411 US 792, as a framework for evaluating age-discrimination claims. While agreeing that the first 3 elements of a prima facie case had been met, it was the 4th that was at issue. Under McDonnell Douglass, she argued, it’s not enough that there is a simple age difference, it must be shown that “the job was given to another person under circumstances giving rise to an inference of unlawful discrimination.” This requires the plaintiff to show that age was a factor in her adverse employment decision—that age made a difference in her employer’s decision to fire her. Because Hrapkiewicz didn’t show that age made a difference, Judge Servitto would have granted WSU’s motion for a directed verdict in its favor.
One additional point to consider is the employer’s failure to keep more complete records to support its decision to fire Hrapkiewicz. Had it done so, it could perhaps have avoided the conclusion of age-discrimination.

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Pre-Case Evaluation Sanctions Enforceable Despite Accepted Case Evaluation Award

Posted on Wednesday, April 12, 2017

The Michigan Court of Appeals has held that unpaid discovery sanctions imposed against a party prior to the case evaluation hearing are still enforceable despite the parties’ acceptance of the case evaluation award. Brown v Farm Bureau Ins, unpublished opinion per curiam of the Court of Appeals, issued March 28, 2018 (Docket 331893).
Relying on the Supreme Court’s opinion in CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549; 640 NW2d 256 (2000), the defendant argued that once the parties accepted the case evaluation award, all claims in the action were resolved, which defendant interpreted as including the pending discovery sanctions. The plaintiff argued, however, that the sanctions were not a part of the “claims” presented in the case, but rather were a punishment to defendant for violating the court’s discovery order, and were not disposed of upon acceptance of the case evaluation award. For that reason, argued plaintiff, the pre-CAM Construction case of Merit Mfg & Die v ITT Higbie Mfg Co, 204 Mich App 16; 514 NW2d 192 (1994) (holding that court-ordered discovery sanctions awarded prior to mediation are distinct from the mediation award), was controlling.

In agreeing with plaintiff, the Court of Appeals made an important distinction between sanctions sought pursuant to the no-fault act (such as an award of attorney fees under MCL 500.3148) and Section 2591 of the Revised Judicature Act of 1961 (regarding frivolous actions or defenses), which would not be permitted once the parties resolved the case via case evaluation, see Larson v Auto-Owners Insurance Company, 194 Mich App 329; 486 NW2d 128 (1992), and sanctions imposed to vindicate the authority of the court.  

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Veterinarian Malpractice Damages Award Upheld

Posted on Wednesday, March 15, 2017

In this veterinary malpractice case, Elvin v Gubert, DVM, No. 326563 and 326566, the Michigan Court of Appeals held that the trial court did not err in calculating damages, instructing the jury, or determining sanctions.
FACTS: The defendant-veterinarian, Karl Gubert, DVM, performed a castration on Larry Elvin’s horse, a two-year-old Pennsylvania Standardbred named Abundance Star. Shortly after the procedure, the horse seized-up, stopped breathing and died. The cause of death was inconclusive, but it was noted in the necropsy that the horse had a small and diseased liver.
Elvin sued Gubert, claiming he hurried the procedure, failed to perform a proper physical and failed to properly monitor the horse during the procedure leading to the death of the horse. Gubert claimed he followed the Standard of Care and that it was the diseased liver that caused the death.
At trial, there was testimony regarding horse racing. The experts agreed that horse racing in Michigan was dead, however, Abundance Star, a Pennsylvania Horse, could race in that state where gaming was state sponsored. The possibility of racing was reflected in the plaintiff’s expert appraisal of the horse, which was $100,000. Defendant’s expert originally valued the horse at $6,600, however, when he learned of the liver disease, he adjusted the value to $500.
The jury found Gubert professionally negligent and awarded Elvin $80,000. The trial court denied Gubert’s motion for a new trial (remittitur) and added $118,049 in case evaluation sanctions to the $80,000 award for a total of $198,049 and an additional $107,121 in attorney fees.
Gubert appealed.
The COA rejected Defendant’s arguments as follows:
  1.  Defendant’s argument that his motion for a new trial should have been granted because of the excessive damages. After reviewing outstanding case law, the COA held the measure of damages was properly limited to the horse’s fair market value at the date of death and was not remote, contingent or speculative.
  2. Defendant’s argument that the trial court was wrong to use Mich Civil Jury Instruction 12.01, which allowed the jury to infer negligence from lack of record keeping. Defendant’s own expert agreed that failure to keep proper or any records was below the standard of care.
  3. Defendant’s argument that the trial court’s attorney’s fee award was based on exorbitant hourly rate—COA held the court properly looked at empirical data as well as the attorneys’ skill, experience and reputation.
The trial court opinion was affirmed.

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U.S. Supreme Court declines Michigan deputies’ appeal in excessive force case

Posted on Tuesday, May 10, 2016
   The United States Supreme Court has denied an appeal in the case of two Macomb County deputies who were sued for civil rights violations when making an arrest.
   The 6th U.S. Circuit Court of Appeals, in Baynes v Cleland (Docket No. 14-2235), ruled the defendant police officers could be held liable for handcuffing the plaintiff, Alan Baynes, too tightly during his domestic violence arrest. In so finding, the 6th Circuit reversed the Eastern District of Michigan, which had granted summary judgment for the defendants based on qualified immunity.
   During his arrest, the plaintiff claimed that he told the defendants that his handcuffs were too tight. After he was released from jail, the plaintiff was treated for injuries to his wrists and was diagnosed with “bilateral radial sensory neuropathy from handcuffs.” He was prescribed wrist guards to wear.
   The plaintiff sued the defendants under 42 USC § 1983, asserting they violated the Fourth and Fourteenth Amendments by using excessive force that caused him severe and permanent injuries. After the Eastern District granted summary judgment for the defendants, the plaintiff appealed.
   The 6th Circuit reversed the Eastern District. In so doing, the court emphasized there is plenty of case law holding that excessively tight handcuffing is a constitutional violation. In particular, the 6th Circuit cited the U.S. Supreme Court’s ruling in Hope v Pelzer, 536 US 730 (2002), for the proposition that officials must be on notice that their alleged conduct was unconstitutional.
   “In Hope, the Supreme Court established that, for purposes of qualified immunity, the precise factual scenario need not have been found unconstitutional for it to be sufficiently clear to a reasonable official that his actions violate a constitutional right — that is, for the right to be ‘clearly established,’” the 6th Circuit said. “In fact, the Supreme Court determined that government officials can still be on notice that their conduct violates established law even in novel factual circumstances.”
   The 6th Circuit further noted the court has consistently held that excessively forceful handcuffing violates the Fourth Amendment, and that its rulings sufficiently put a reasonable officer on notice that “unduly tight handcuffing” is a constitutional violation. Therefore, “the law is sufficiently clear for the purpose of the clearly established prong of the qualified immunity analysis,” the 6th Circuit said.  
   Applying these principles this case, the 6th Circuit said that, while the Eastern District recognized there is a general right to be free from unduly tight handcuffing, the district court proceeded to mistakenly find that the right was not clearly established in this case because a reasonable officer would not have known that he was violating the plaintiff’s Fourth Amendment rights.
   According to the 6th Circuit, the Eastern District relied too heavily on the unpublished opinion in Fettes v Hendershot, 375 F App’x 528 (6th Cir, 2010). “It was at this point that the district court erred,” the 6th Circuit said. “The factual nuances the district court noted to distinguish [the plaintiff’s] case from this Court’s extensive precedent on unduly tight handcuffing amount to precisely the kind of rigidity the Supreme Court foreclosed in Hope.”
   The defendants thereafter appealed the 6th Circuit's decision to the U.S. Supreme Court, which denied the petition for writ of certiorari on March 7, 2016 (Docket No. 15-852).


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Grand Rapids ‘peace and tranquility’ ordinance is declared unconstitutional

Posted on Friday, April 29, 2016
    A Grand Rapids ordinance that prohibits the use of a premises “which shall destroy the peace and tranquility of the surrounding neighborhood” is unconstitutionally vague, the Michigan Court of Appeals has ruled in a published opinion.
   The appeals court, in People of the City of Grand Rapids v Gasper (Docket No. 324150), distinguished this case from other disturbing the peace situations, and said: “There is simply no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood, which compels ‘men of common intelligence’ to guess as to what conduct is proscribed by [the ordinance].”
   The defendants in the case owned and worked for the Tip Top Deluxe Bar and Grille. They were accused of violating § 9.63(3) of the City of Grand Rapids Noise Ordinance, which says: “(3) No person shall use any premises or suffer any premises under his or her care or control to be used which shall destroy the peace and tranquility of the surrounding neighborhood.”
   The defendants sought to have the charges dismissed. Police officers testified they had responded to various noise complaints at Tip Top, and had issued citations for violating § 9.63(3). Officers also indicated they did not record the decibel levels, and that departmental policy was to strictly enforce noise violations at Tip Top.
   The Grand Rapids district court ruled that § 9.63(3) was unconstitutionally vague because reasonable minds could differ about what destroys the peace and tranquility of a neighborhood, and there was no objective way for law enforcement to make such a determination.
   On appeal, the Kent County Circuit Court reversed, finding that § 9.63(3), when read in conjunction with other parts of the noise ordinance, and § 9.63(11) in particular, provided notice of the maximum sound levels during the day and night, and how those levels would be measured.
   The Court of Appeals agreed with the district court, and concluded the noise ordinance was unconstitutionally vague.
    In particular, the appeals court pointed out the circuit court “acknowledged that a person could be cited for violating section (3) regardless of compliance with section (11): ‘Section 9.63 delineates clear standards for establishing a per se violation under Sec. 9.63(11) and also allows enforcement … when noise levels are believed to destroy the peace and tranquility of the surrounding neighborhood.’”
   Therefore, consistent with this acknowledgement, the Court of Appeals said the existence of maximum decibel limits in § 9.63(11) did not help citizens determine whether their conduct violated § 9.63(3), nor did it place any constraints on enforcing police officers’ discretion.
   “We therefore hold that the circuit court erred in determining that the language of § 9.63(11) saved § 9.63(3) from vagueness,” the appeals court ruled.
   The Court of Appeals further explained there was too much “guesswork” involved in enforcing the noise ordinance.
   According to the appeals court, the ordinance provided “virtually no guidance” in determining whether conduct is prohibited. The panel also pointed out that compliance with the decibel limits in § 9.63(11) still did not protect an individual from being cited for violating § 9.63(3).
   “And on the other side of the coin,” the Court of Appeals said, “it vests the enforcing officer with almost complete discretion to determine whether the ordinance has been violated.”
   Persons making noise were basically required to guess whether police would consider the noise level as disturbing the neighborhood’s peace and tranquility, the Court of Appeals said. “Simply put, conduct that ‘destroys’ the peace and tranquility of some would not affect others to such an extent,” the court said. “There is simply no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood, which compels ‘men of common intelligence’ to guess as to what conduct is proscribed by § 9.63(3).”
   As a result, law enforcement and fact-finders were unconstitutionally vested with “’virtually complete discretion” to determine whether a violation of § 9.63(3) has occurred,” the Court of Appeals concluded.

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Party didn’t meet MCR 3.206 requirements: Must pay own attorney fees

Posted on Monday, April 25, 2016
An ex-wife who filed a motion to modify a custody order was not entitled to attorney fees associated with the motion, because she was able to pay her own fees and the fees were not the result of her ex-husband’s failure to obey a court order, the Michigan Court of Appeals has ruled.
   In Hayley v Martin (Docket No. 324689), the plaintiff ex-wife filed a motion to modify the custody and parenting-time order, which the trial court granted in part. Afterward, the plaintiff filed a motion for attorney fees pursuant to MCR 3.206(C), which the trial court denied, finding that both parties worked and were responsible for their own fees.
   MCR 3.206(C) says:
“(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.”
   The plaintiff appealed and the Court of Appeals remanded the case, finding the trial court did not adequately address the plaintiff’s fee request.
   On remand, the trial court determined the plaintiff improperly sought appeal costs and post-appeal costs, and so the requested fee amount was reduced. The trial court also held that the billable rate and number of hours claimed were reasonable.
   The trial court ultimately found the plaintiff failed to prove that she could not pay her own attorney fees or that the defendant was able to pay her fees. Because the requirements of MCR 3.206(C)(2)(a) were not met, the trial court denied the plaintiff’s fee request. The trial court also held the plaintiff was not entitled to fees under MCR 3.206(C)(2)(b), because she did not establish that the fees were incurred because the defendant had violated a previous court order.
   Therefore, the trial court held — as it did the first time — that both parties were responsible for their own attorney fees.
    On appeal for the second time, the plaintiff argued the trial court applied an incorrect standard to determine whether she could pay her attorney fees. The Court of Appeals disagreed, finding the trial court adequately considered the ability to pay, as required by MCR 3.206(C)(2)(a).
    In particular, the Court of Appeals noted that the plaintiff had been paying her own legal fees throughout the case. And while the appeals court said the plaintiff had to prove that financial assistance was necessary, it noted that she had already paid $71,000 in attorney fees.
   “Further, plaintiff earned about $62,000 a year and testified that she was paying her attorney $150 a month,” the Court of Appeals said. “Thus, … plaintiff did not prove that she was unable to pay her attorney fees incurred by the filing of her motion to modify the consent judgment of divorce.”
   The Court of Appeals also rejected the plaintiff’s argument that the trial court applied an incorrect legal standard.
   According to the Court of Appeals, the trial court properly found that the plaintiff failed to show the defendant was “living an extravagant lifestyle and earning $200,000 to $400,000 a year.” The appeals court also noted that the defendant had his own attorney fees to pay. Therefore, the trial court correctly held that the plaintiff did not meet her burden of proof under MCR 3.206(C), and the trial court’s ruling was “amply supported by the record evidence.”
   Regarding MCR 3.206(C)(2)(b), the Court of Appeals said the plaintiff did not point to any evidence indicating that she filed her motion to modify custody because the defendant had failed to comply with a prior order. As a result, the appeals court ruled the trial court did not abuse its discretion in finding that the plaintiff was not entitled to fees under MCR 2.306(C)(2)(b).




    “In summary, the trial court did not abuse its discretion in denying plaintiff’s request for attorney fees related to the filing of her motion to modify the custody and parenting time provisions of the consent judgment of divorce,” the appeals court concluded.

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Court of Appeals: Michigan did not have jurisdiction under UCCJEA to hear custody case

Posted on Tuesday, April 19, 2016
The Michigan Court of Appeals has peremptorily vacated a trial court order that denied a mother’s motion to transfer a child-custody case from Michigan to Idaho.
In Ansah v Ansah (Docket No. 330121), the parties’ divorce judgment was entered in Calhoun County, Michigan. Several years later, the father filed a motion to modify custody in the Calhoun County Circuit Court. The mother requested that the court transfer the case to Idaho, where she had lived with the parties’ child since the divorce was final in 2013. The trial court denied the motion.
The mother appealed, asking the Court of Appeals to peremptorily reverse the trial court’s order denying her motion to transfer the custody case to Idaho.
In making this request, it was argued the trial court erred by not dismissing the father’s custody motion for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), because neither party, nor the child, resided in Michigan. Rather, it was asserted the mother and the child resided in Idaho, while the father resided in Connecticut.

Given these facts, counsel for the mother argued that:
· Michigan did not retain exclusive, continuing jurisdiction under the UCCJEA, specifically MCL 722.1202(1)(b); and
· when a Michigan court lacks exclusive, continuing jurisdiction, in order to modify a child-custody determination it must have jurisdiction to make an initial child-custody determination under the UCCJEA, specifically MCL 722.1201.

In this case, counsel claimed the most recent time the child could have resided in Michigan was 2013 during the father’s parenting time, but only if the father had not yet relocated to Connecticut. However, the record was unclear as to when the father actually moved to Connecticut. Because the child had spent two-and-a-half years in Idaho before the custody action was filed in Calhoun County Circuit Court, counsel maintained that Michigan no longer had the requisite connection for exclusive, continuing jurisdiction.
Meanwhile, it was also argued that, even if the father returned to Michigan and the Calhoun County Circuit Court did have exclusive, continuing jurisdiction, the trial court still committed error by not considering all the factors in MCL 722.1207. This section of the UCCJEA lets a trial court transfer a case because Michigan is an inconvenient forum. And according to counsel, Michigan was an inconvenient forum and the trial court abused its discretion by not transferring the case to Idaho pursuant to §207.
The Court of Appeals agreed with the foregoing arguments. In an order issued by Judges Joel P. Hoekstra, David H. Sawyer, and William B. Murphy, the appeals court said the Calhoun County Circuit Court did not have continuing jurisdiction to hear the custody dispute and vacated the trial court’s order.
In reaching this conclusion, the Court of Appeals simply cited §201 and §202 of the UCCJEA, and did not elaborate further on its reasoning.



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