Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 1 of 29

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CHILDREN' S ADVOCACY INSTITUTE
University of San Diego School of Law
Robert C . Fellmeth (SBN 49897)
Edward Howard (SBN 1 5 1 936)
Christina McClurg Riehl (SBN 2 1 6565)
5998 Alcala Park
San Diego, California 92 1 1 0
Telephone:
(6 1 9) 260-4806
Facsimile:
( 6 1 9) 260-4753
WINSTON & STRAWN, LLP
Jonathan M. Cohen (SBN: 1 68207)
Robyn Callahan (SBN: 225472)
1 0 1 California Street, 3 9th Floor
San Francisco, CA 94 1 1 1 -5 894
Telephone:
(4 1 5) 59 1 - 1 000
Facsimile:
(4 1 5) 5 9 1 - 1 400
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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E.T., K.R., C.B. and G.S., by their next friend,
Frank Dougherty, on their behalf and on behalf of
all those similarly situated,

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Plaintiffs,

Case No .
COMPLAINT FOR DECLARATORY
JUDGMENT AND PERMANENT
INJUNCTIVE RELIEF

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42 U.S.C. § 1 983 and Pendent State Law
Claims

16

v.

17

RONALD M. GEORGE, Chair of the Judicial
Council of California, in his official capacity;
WILLIAM C . VICKREY, Administrative Director
of the Administrative Office of the Courts of the
Judicial Council, in his official capacity; and
JAMES M. MIZE, Presiding Judge of the Superior
Court of the County of Sacramento, in his official
capacity,

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19
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CLASS ACTION

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Defendants.
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Plaintiffs E.T., K.R., C.B. and G.S. ("Plaintiffs"), on behalf of themselves and others similarly

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25

situated, allege the following claims against the Honorable Ronald M. George, William C. Vickrey,

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and the Honorable James M. Mize, in their official capacity ("Defendants").

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Ill

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Ill

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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 2 of 29

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1.

2

This action arises under Title 42 of the United States Code, § 1 983, as Plaintiffs allege

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they have been deprived of their rights under the federal Constitution and federal statutes. This Court

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has jurisdiction over the action under 28 U.S.C. § § 1 3 3 1 and 1 343 .
2.

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The pendent state claims alleged in this action arise from the same facts as the federal

6

claims, such that all claims alleged would ordinarily be prosecuted in a single action. This Court

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therefore has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1 3 67(a).
3.

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9

All events alleged in this action occurred in the County of Sacramento, California.

Venue therefore lies in this Court under 28 U.S.C. § 1 3 9 1 (b)(2).

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SUMMARY OF CASE

This lawsuit seeks a Dependency Court fo r S acramento's abused and neglected

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children that comports with basic Due Process and the effective, adequate, and competent assistance

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of counsel for the children of Sacramento County in dependency proceedings.
III.

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PARTIES

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A.

The Plaintiffs

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5.

Plaintiff E.T. i s a resident of the County of Sacramento. She i s presently in foster care

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JURISDICTION AND VENUE

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and is 1 4 years old. At all times relevant to this lawsuit, E.T. was a resident of the County of

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Sacramento.
6.

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Plaintiff K.R. is a resident of the County of Sacramento. She is presently in foster care

20

and is 1 3 years old. At all relevant times to this lawsuit, K.R. was a resident of the County of

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Sacramento.
7.

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Plaintiff C.B. is a resident of the County of Sacramento. She is presently in foster care

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and is 17 years old. At all times relevant to this lawsuit, C.B. was a resident of the County of

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Sacramento.
8.

25

Plaintiff G. S. is a resident of the County of Sacramento. He is presently a ward of the

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court and is 1 8 years old. At all times relevant to this lawsuit, G. S . was a resident of the County of

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Sacramento.

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///

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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 3 of 29

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B.

The Defendants

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9.

The Honorable Ronald M. George ("Chief Justice George") is Chair of the Judicial

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Council, the body responsible for overseeing the statewide administration of justice in the California

4

courts. Chief Justice George is responsible, in his official capacity, for the administration of the

5

Judicial Council, including the allocation of the judicial branch budget (and allocation of relevant

6

funds for courts and court-appointed child representation in Dependency Court proceedings); the

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promulgation of rules of court administration, practice, and procedure; and establishing the direction

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and setting priorities for the continual improvement of the court system. Chief Justice George is sued

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only in his official capacity.

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Administrative Office of the Courts of the Judicial Counsel (the "AOC"). The AOC is the staff

12

agency of the Judicial Council and is responsible for a variety of programs and services to improve

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access to a fair and impartial judicial system. The Center for Families, Children, and the Courts, a

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division of the AOC, has implemented a program called "DRAFT" (as described below), which

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provides court funding to participating California counties. The children's court-appointed counsel

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are paid for through funding from DRAFT by virtue of the County of Sacramento's participation in

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the program. Mr. Vickrey is responsible, in his official capacity, for the administration of the AOC.

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Mr. Vickrey is sued only in his official capacity.

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Defendant William C. Vickrey ("Mr. Vickrey") is the Administrative Director of the

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1 1.

The Honorable James M. Mize ("Judge Mize") is the Presiding Judge of the Superior

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Court of the County of Sacramento ("Sacramento County Superior Court"). Judge Mize is

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responsible, in his official capacity, for leading the court, establishing policies, and allocating

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resources in a manner that promotes access to justice for all members of the public, provides a forum

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for the fair and expeditious resolution of disputes, maximizes the use of judicial and other resources,

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increases efficiency in court operations, and enhances service to the public. Cal. R. Ct Rule 1 0.603 .

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He has the authority to assign judges to departments, such as Sacramento County Superior Court's

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Dependency Court. Id. Rule 1 0.603(b)(l)(A). He also has a duty to approve the allocation of funds

27

in a manner that promotes the implementation of state and local budget priorities and that ensures

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equal access to justice and the ability of the court to carry out its functions effectively. Id. Rule
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

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1 0.603(b)(6)(C). His duties also include implementing the legislative mandate requiring the

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appointment of counsel to children in dependency proceedings pursuant to Section 3 1 7 of the

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California Welfare and Institutions Code. Judge Mize is sued only in his official capacity.

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IV.
1 2.

Civil Procedure, on behalf of themselves and all other similarly-situated persons as members of a

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Class initially defined as follows:
All children currently and hereafter represented by court-appointed
counsel in juvenile dependency proceedings in the Sacramento County
Superior Court.

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Plaintiffs bring this suit as a class action pursuant to Rule 23 of the Federal Rules of

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CLASS ACTION ALLEGATIONS

13.

Numerosity.

The proposed Class is sufficiently numerous, as approximately 5, 1 00

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children are currently represented by court-appointed counsel in dependency proceedings in the

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County of Sacramento. Class Members are so numerous that joinder of all members is impracticable.

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Class Members can be identified by records maintained by the court-appointed attorneys and

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Defendant Judge Mize.

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because Plaintiffs and Class Members have been, and currently are, being harmed by Defendants'

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wrongful conduct as detailed herein. Specifically, Plaintiffs' and Class Members' claims arise from

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Defendants' inadequate provision of Dependency Courts and counsel. This, in turn, causes the

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following harms to Plaintiffs; harms typical of the harms suffered by members of the Class:

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Typicality.

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a.

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by their counsel;

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b.

Plaintiffs ' claims are typical of the claims of members of the Class

Class Members, including Plaintiffs, are not, or are not adequately, represented

Class Members, including Plaintiffs, are not meaningfully interviewed b y their

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counsel nor do they meet regularly with them such that counsel cannot effectively represent the

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child's desires or best interests, nor assess the child's well-being or the child's wishes on such issues

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as placement, reunification, and eligibility for, and enrollment in, programs, services, or the refusal to

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enroll in such services;

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c.

Class Members, including Plaintiffs, do not benefit from counsel engaging in

further investigations, whether beyond the scope of the dependency proceeding or not, as may be
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 5 of 29

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d.

Class Members, including Plaintiffs, do not benefit from witnesses that, but for

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the overwhelming caseloads of the children's appointed attorneys, would be interviewed, called to

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testify, or effectively examined on either direct or cross, resulting in a situation where the child and

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the court are deprived of facts which, if known by the court or the child' s counsel, may alter the

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outcomes in Dependency Court;

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e.

Class Members, including Plaintiffs, are, through their counsel, denied contact

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with social workers and other professionals associated with their case and denied the ability to work

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with other counsel and the court to resolve disputed aspects of a case without contested hearing;

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reasonably necessary to ascertain facts about the child's best interests and needs;

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f.

Class Members, including Plaintiffs, do not have sufficient contact with their

counsel to establish and maintain an adequate and professional attorney-client relationship;
g.

Class Members, including Plaintiffs, through their counsel, are not able to

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obtain copies of all pleadings and relevant notices; not able to participate in depositions, negotiations,

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discovery, pre-trial conferences, and hearings; not able to inform other parties and their

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representatives that their counsel is representing the Class Member and obtain reasonable notification

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prior to case conferences, changes of placement, and other changes of circumstances affecting the

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Class Member and their family; not able to attempt to reduce case delays and ensure that the court

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recognizes the need to speedily promote permanency for the child; unable to counsel the child

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concerning the subj ect matter of the litigation, the child's rights, the court system, the proceedings,

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the lawyer's role, and what to expect in the legal process; unable to develop a theory and strategy of

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the case to implement at hearings, including factual and legal issues; and unable to identify

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appropriate family and professional resources for the child;

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h.

Class Members, including Plaintiffs, are denied the right to have their

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individual rights adjudicated by a neutral tribunal because ( 1 ) the caseloads of the hearing officers for

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the Dependency Court are too large to permit the children and their counsel a meaningful opportunity

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to be heard, and (2) the caseloads of the judicial officers are too large to permit the officers to obtain

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and evaluate the sufficiency of the information provided to them in and of itself and proportional to

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the liberty interest and other constitutional-level interest at stake for the children.
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 6 of 29

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denied full and fair hearings on determining every facet of Dependency Court, including, but not

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limited to, placement; termination of parental rights; reunification; relationships with relatives and

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siblings; educational needs; emotional, physical, and mental well-being; medical needs; and

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eligibility for and enrollment in various programs, particularly when they age out of the system at

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eighteen years old.
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Accordingly, and due to the effects enumerated above, Class Members,

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including Plaintiffs, are deprived of their.due process rights under the federal and California

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Constitutions, and their rights under federal and state statutes.

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Class Members, including Plaintiffs, as a result of the aforementioned, are

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1 5.

Common Questions of Law and Fact.

There are questions of law and fact

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common to the Class, pursuant to Rule 23(a)(2) of the Federal Rules of Civil Procedure as the claims

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of every Class Member are based upon the excessive caseloads shouldered by court-appointed

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counsel and the Dependency Courts of the County of Sacramento. Among these common questions

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of law and fact are:
A.

Whether Plaintiffs and Class Members have a right under the federal and California

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Constitutions to adequate and effective legal representation in dependency

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proceedings and related appeals;

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B.

Whether Plaintiffs and Class Members have a state law entitlement to competent

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assistance of counsel with a caseload that ensures adequate representation and federal

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law entitlements under the Child Welfare Act and Child Abuse Prevention and

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Treatment and Adoption Reform Act;

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C.

Whether the caseloads of court-appointed dependency counsel i n the County of

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Sacramento are so excessive that federal and state constitutional rights are abridged in

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violation of 42 U.S.C. § 1 983, and state and federal statutory standards are breached,

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in that:

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1.

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Counsel cannot provide adequate or effective legal assistance to Plaintiffs and
Class Members;

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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 7 of 29

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Defendants have not protected Plaintiffs' and Class Members' health and

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safety under 42 U. S.C. § 671 (a)(22) of the Child Welfare Act;

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litem who can meet the obligations set forth in 42 U.S.C. § 5 1 06a(b)(2)(A)(ix)

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of the Child Abuse Prevention and Treatment and Adoption Reform Act;

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Counsel cannot provide competent legal representation as required by CAL.
WELF. & INST. CODE § 3 1 7.5;

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Defendants have not provided counsel with caseloads that ensure adequate
representation as required by CAL. WELF. & INST. CODE § 3 1 7(c); and

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Defendants have not provided Plaintiffs and Class Members with guardians ad

D.

Whether the Dependency Courts of the County of Sacramento are so overburdened

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with cases that they cannot provide a fair and adequate tribunal to hear the dependency proceedings

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to which Plaintiffs and Class Members are subj ect, thus depriving Plaintiffs and Class Members of

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their due process rights under the Federal and California Constitutions; and

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E.

Whether injunctive relief and a declaratory judgment is appropriate.

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1 6.

Adequacy.

Plaintiffs, through their next friend, Frank Dougherty, will fairly and

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adequately protect the interests of Class Members and have retained counsel competent and

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experienced in complex class actions and civil rights litigation. Plaintiffs, through their next friend,

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Frank Dougherty, are committed to vigorous prosecution of this action and have no interests

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antagonistic to or in conflict with those of Class Members.

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1 7.

Certification under Rule 23(b)(2): Certification is appropriate under Fed. R. Civ. P. 23

(b)(2) because:
1 8.

The prosecution of separate actions by individual Class Members is likely and would

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create a risk of inconsistent or varying adjudications with respect to individual Class Members, which

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would establish incompatible standards of conduct for Defendants to ensure that they provide court­

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appointed counsel and Dependency Courts that comply with legal requirements;

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1 9.

Defendants are obligated by law to treat all Class Members alike with respect to the

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due process rights afforded to each Class Member under the federal and state constitutions, the

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Federal Child Welfare Act, the Child Abuse Prevention an Treatment and Adoption Reform Act and
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 8 of 29

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the California Welfare and Institutions Code. The prosecution of separate actions by individual Class

2

Members as to the caseloads of Dependency Courts and court-appointed counsel in the County of

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Sacramento would create a risk of adjudications that would, as a practical matter, be dispositive of

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the interests of other Class Members who are not parties to the individual adjudications, or

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substantially impair or impede their ability to protect their interests; and

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By failing to provide sufficient Dependency Courts and court-appointed counsel,

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Defendants have acted, or refused to act, on grounds generally applicable to the Class, thereby

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making final injunctive relief and declaratory relief appropriate as to the Class as a whole.

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Notice.

Plaintiffs will provide notice to the Class if the Court, in its discretion,

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requests that notice be given pursuant to Rules 23 (b)( l ) and 23(b)(2) of the Federal Rules of Civil

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Procedure.

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V.

FACTS CONCERNING DEFENDANTS' LEGAL VIOLATIONS

13

A.

Preliminary Background Facts

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22.

In Sacramento County, crushing and unlawful caseloads are illegally frustrating both

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the ability for Dependency Courts to adjudicate and provide children with a meaningful opportunity

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to be heard, as well as the effective, adequate and competent assistance of counsel, to the enduring

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harm of Sacramento's abused and neglected children.

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23.

Dependency Court and, by extension, foster care, fundamentally is a legal process. In

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this legal process, the Dependency Court judge acts as the State, which is in loco parentis (standing

20

in place of the parents). The judge decides whether the child will be removed from the care of his

21

parents and whether, and under what circumstances, the child will be reunited with them.

22

Dependency proceedings, therefore, are usually life-altering for the child. The judge determines not

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only if a right to an existing parent will be abridged, but all of the building blocks of the child' s life:

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whether the child will have contact with a previous parent, who will actually serve as parent, where

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the child will live, whether siblings will be in the household or never seen again, what school the

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child will attend, and even what medicines the child will be given.

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24.

The legal system within which the judge makes these decisions remains, at its core, an

adversarial one. As with any other adversarial legal proceeding, the ability of the Dependency Court
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 9 of 29

judge to render sensible and informed decisions is contingent upon both the information brought to
2

him or her by counsel, and a judicial caseload that permits the judge to consider carefully what he has

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been provided.

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children in dependency proceedings have a right to counsel. And as with any right to counsel, the

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right must be a meaningful one. The child is guaranteed the right to assistance of counsel that is - as

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a real-world, practical matter - effective, competent, and adequate.

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Both state and federal statutes and the state and federal constitutions provide that

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Plaintiffs are informed and believe, and on the basis of such information and belief

allege that caseloads currently carried by counsel for children in dependency proceedings in the

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County of Sacramento are so large that such counsel are not able to effectively, adequately, or

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competently represent their clients, violating state and federal statutes and the state and federal

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constitutions.

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27.

For these reasons and those detailed herein, children subject to dependency

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proceedings in the County of Sacramento - one of the most important legal proceedings of their lives

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assistance of counsel, and to a fair and adequate tribunal to hear and decide the dependency

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proceedings to which they are subj ect.

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B.

Dependency Proceedings

19

28.

Dependency proceedings are conducted to protect the safety and well-being of an

20

abused or neglected child whose parents or guardians either cannot or will not do so, or who

21

themselves pose a threat to the child. During removal from parental custody, the State holds a

22

"jurisdictional" hearing and thereafter may take parental jurisdiction of the child. The State then

23

decides the child' s placement pending the litigation. That placement may be in family foster care,

24

with a family foster agency, with relatives, or in an institutional foster care. After a child is removed

25

from his or her parents, subsequent court proceedings and reviews are required to determine whether

26

to reunite the child with his or her parents, or to focus instead on finding a permanent and stable

27

placement for the child. If reunification services are terminated, the State takes permanent

28

jurisdiction of the child under a permanent placement plan. That plan may include adoption,
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 10 of 29

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guardianship, or continued foster care custody. While in foster care, the child depends upon the

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court, and therefore also his or her counsel, for decisions pertaining to everything from extra­

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curricular activities to visitation to clothing allowances to whether the child should be administered

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certain drugs. A child is entitled to appeal and seek writs from the various judgments of the

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Dependency Court.

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C.

An Overburdened Dependency Court System

7

29.

Plaintiffs are informed and believe, and on the basis of such information and belief

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allege that California' s Dependency Courts and foster care system are similarly overwhelmed and

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unreasonable. In the words of the Blue Ribbon Commission on Children in Foster Care (the "Blue

10

Ribbon Commission"), headed by California Supreme Court Justice Carlos Moreno, "California' s

11

Dependency Court system is overstressed and under-resourced," with " [f]ull-time judicial officials in

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California carry [ing] an average of 1,000 cases, which has a direct impact on the level ohime and

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attention any one case receives." Administrative Office of the Courts of the Judicial Council of

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California, CHILDREN IN FOSTER CARE: FINAL RECOMMENDATIONS OF THE BLUE

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RIBBON COMMISSION ON CHILDREN IN FOSTER CARE TO IMPROVE THE JUVENILE

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DEPENDENCY COURTS AND FOSTER CARE SYSTEM IN CALIFORNIA 13, 16 (2008)

17

(hereinafter Blue Ribbon Commission Report). These statistics are borne out in the caseloads of the

18

Sacramento Dependency Courts. The County of Sacramento presently has only 5 judicial referees

19

(who preside over dependency proceedings) responsible for approximately 5,100 active dependency

20

cases. A former lead dependency referee from Sacramento estimates that such caseload affords

21

referees roughly two minutes of courtroom time per case. A foster child appearing in a Sacramento

22

Dependency Court with ineffective counsel therefore cannot reasonably expect the judicial referee to

23

serve as a backstop and look out for his or her best interests. The referee is just as overburdened as

24

counsel.

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30.

Plaintiffs are informed and believe, and on the basis of such information and belief

26

allege that Courts saddled with such workloads cannot afford to give sufficient attention to these life-

27

changing proceedings proportionate to their importance to the liberty and other constitutional-level

28

interests of Sacramento County's abused and neglected children. Former Sacramento County Lead
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 11 of 29

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Dependency Referee Carol Chrisman has observed, "When you calculate it out, it's two minutes per

2

case - enough time for everyone to say submit or object, but not much more." Karen de Sa, Broken

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Families, Broken Courts, San Jose Mercury News, Feb. 8, 2008. This is certainly not enough time to

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make the appropriate parental decisions for the children under the court's care.

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Plaintiffs are informed and believe, and on the basis of such information and belief

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allege that the Judicial Council is well aware of this problem. The Blue Ribbon Commission

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recommended that the Judicial Council undertake a new judicial caseload study focused specifically

8

on juvenile dependency courts and, pending completion of the study, that presiding judges evaluate

9

their current allocation of judgeships and resources and make adjustments as necessary. Blue Ribbon

10

Commission Report, at 22. The Judicial Council accepted this recommendation in full but has not yet

11

released any guidelines or made any institutional changes.

12

32.

Plaintiffs are informed and believe, and on the basis of such information and belief

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allege that while social workers serve as an arm of the judicial court, they are in no position to take

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up the slack to protect foster children given their own heavy workloads, executive and Board level

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mismanagement, and CPS 's failure to follow through on oversight by the Board of Supervisors. A

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study commissioned by the California Department of Social Services concluded that the optimal, per­

17

week caseload for social workers, by program, is as follows: 9.88 emergency response cases, 10.15

18

family maintenance cases, 11.94 family reunification cases, and 16.42 permanent placement cases.

19

American Humane Association, SB2030: CHILD WELFARE SERVICES WORKLOAD STUDY iii

20

(2000). But some Sacramento social workers carry caseloads that are more than double these

21

recommended levels. See MGT of America, Inc., REVIEW OF THE SACRAMENTO CHILD

22

PROTECTIVE SERVICES DIVISION, FINAL REPORT (March 23, 2009) ("MGT Report").

23

Moreover, they do so while laboring under long-standing policies that "plac [e] more emphasis and

24

focus on documentation and desk-work activities than . . . on meeting with children and families and

25

performing out-of-office fieldwork." Id. at 6. Against this backdrop, the ability of the children's

26

appointed attorneys to conduct thorough and independent investigations are all the more critical.

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33.

With the courts and social workers incapable of protecting their wards, the last

remaining guardian for a child in Dependency Court is his or her attorney.
11
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 12 of 29

1

c.

Court-Appointed Counsel In Dependency Proceedings

2

34.

Section 3 1 7 of the California Welfare and Institutions Code requires that ( 1 ) counsel

3

be appointed for children in almost all dependency cases, and (2) appointed counsel have caseloads

4

and training that ensure adequate representation. CAL. WELF. & INST. CODE § 3 1 7(c). Section

5

3 1 7.5 further mandates that all parties who are represented by counsel in dependency proceedings,

6

including minors who are the subj ect of dependency proceedings, are entitled to competent counsel.

7

CAL. WELF. & INST. CODE § 3 1 7. 5 .
35.

8
9

Court:

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"shall be to advocate for the protection, safety, and physical and
emotional well-being of the child." Cal. Welf. . & Inst. Code § 3 1 7(c).

11

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Section 3 1 7(c) states the primary responsibility o f counsel for children in Dependency

36.

Section 3 1 7(e) imposes specific mandatory, minimum duties of counsel for children in

dependency proceedings:
3 7.

The counsel for the child shall be charged in general with the representation of the

E

15

child's interests. To that end, the counsel shall make, or cause to have made, any further

Jj

16

investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts,

17

including the interviewing of witnesses, and he or she shall examine and cross-examine witnesses in

18

both the adjudicatory and dispositional hearings. He or she may also introduce and examine his or

19

her own witnesses, make recommendations to the court concerning the child' s welfare, and

20

participate further in the proceedings to the degree necessary to adequately represent the child. In

21

any case in which the child is four years of age or older, counsel shall interview the child to

22

determine the child's wishes and to assess the child's well-being, and shall advise the court of the

23

child's wishes. Counsel for the child shall not advocate for the return of the child if, to the best of his

24

or her knowledge, that return conflicts with the protection and safety of the child. In addition,

25

counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding and

26

report to the court other interests of the child that may need to be protected by the institution of other

27

administrative or judicial proceedings. The attorney representing a child in a dependency proceeding

28

is not required to assume the responsibilities of a social worker and is not expected to provide
12
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 13 of 29

1

nonlegal services to the child. The court shall take whatever appropriate action is necessary to fully

2

protect the interests of the child. CAL. WELP. & INST. CODE § 3 1 7(e) (emphasis added).

3
4

38.

dependency proceedings and caseloads for their lawyers. Section 3 1 7(c) provides that:

5

The appointed counsel shall have a caseload and training that ensures
adequate representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards, training
requirements, and guidelines for appointed counsel for children and
shall adopt rules as required by Section 326.5 no later than July 1 ,
200 1 .

6
7
8

CAL. WELP. & INST. CODE § 3 1 7(c) (emphasis added).

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5 .660(d) provides in pertinent part:

13

Attorneys or their agents are expected to meet regularly with clients,
including clients who are children, regardless of the age of the child or
the child's ability to communicate verbally, to contact social workers
and other professionals associated with the client's case, to work with
other counsel and the court to resolve disputed aspects of a case
without contested hearing, and to adhere to the mandated timelines.
The attorney for the child must have sufficient contact with the child to
establish and maintain an adequate and professional attorney-client
relationship. The attorney for the child is not required to assume the
responsibilities of a social worker and is not expected to perform
services for the child that are unrelated to the child's legal
representation.

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The California Rules of Court expand upon these standards. California Rule of Court

(4) Standards of representation

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State law recognizes the nexus between effective representation o f children in

17
18
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(6) Caseloads for children's attorneys

21

The attorney for a child must have a caseload that allows the attorney to
perform the duties required by section 3 1 7( e) and this rule, and to
otherwise adequately counsel and represent the child. To enhance the
quality of representation afforded to children, attorneys appointed
under this rule must not maintain a maximum full-time caseload that is
greater than that which allows them to meet the requirements stated in
(3), (4), and (5). Cal. R. Ct. Rule. 5 .660(d)(4) & (6) (emphasis added).

22
23
24
25
26
27
28

40.

The ABA also has prescribed the basic obligations of dependency counsel. Counsel

must, at a minimum:
A.

Obtain copies of all pleadings and relevant notices;
13
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 14 of 29

1

B.

Participate in depositions, negotiations, discovery, pre-trial conferences, and hearings;

2

C.

Inform other parties and their representatives that he or she is representing the child
and expects reasonable notification prior to case conferences, changes of placement,
and other changes of circumstances affecting the child and the child's family;

D.

Attempt to reduce case delays and ensure that the court recognizes the need to
speedily promote permanency for the child;

E.

Counsel the child concerning the subject matter of the litigation, the child's rights, the
court system, the proceedings, the lawyer's role, and what to expect in the legal
process;

F.

Develop a theory and strategy of the case to implement at hearings, including factual
and legal issues; and

G.

Identify appropriate family and professional resources for the child.

3
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CHILDREN IN ABUSE AND NEGLECT CASES ( 1 996). Discharging just these basic obligations
is necessarily time-consuming.
41.

As stated above, California law requires the Judicial Council to "promulgate rules of

14

court that establish caseload standards, training requirements, and guidelines for appointed counsel."

15

CAL. WELF. & INST. CODE § 3 1 7(c). In October 2007, the Judicial Council adopted a caseload

16

standard of 1 88 clients per attorney, assuming that each full-time attorney is aided by one-half of the

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American Bar Association, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT

17
18

time of a full-time investigator or social worker. While the Judicial Council's standard would help to
mitigate inadequate representation, even that number may not go far enough. NACC, for instance,
recommends that a full-time attorney represent no more than 1 00 clients at a time.

19
20
21
22
23
24
25
26
27
28

D.

Federal and State Rights Implicated By Excessive Court and Attorney Caseloads

42.

Children subj ect to dependency proceedings or in foster care are entitled to due

process under both the Fourteenth Amendment of the Federal Constitution and Article I, § 7 of the
California Constitution. In proceedings to terminate parental rights, these children have, at the very
least, a fundamental liberty interest in their own safety, health, and well-being, as well as an interest
in maintaining the integrity of their family units and relationships with their biological parents or
subsequent caregivers. These interests continue to be at stake even after these children are placed in
state custody because a "special relationship" is created that gives rise to rights to reasonably safe
living conditions and services necessary to ensure protection from physical, psychological, and
14
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 15 of 29

1

emotional harm. A s a result o f these interests, these children are constitutionally entitled to adequate

2

and effective assistance of counsel under the Due Process Clauses of the State and Federal

3

Constitutions in both dependency proceedings and ensuing appeals. Their overworked, court-

4

appointed lawyers are unable to meet this constitutional standard.

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Children in dependency proceedings also are entitled under the Due Process Clauses

6

of the State and Federal Constitutions to a fair and adequate tribunal to hear and decide their case so

7

that they have a meaningful opportunity to be heard; thus, Dependency Court hearing officers are

8

routinely unable to obtain and evaluate the sufficiency of the information provided to them in and of

9

itself, and proportional to the liberty interests and other constitutional-level interests at stake for the

10

children. Because of their excessive caseloads, the Dependency Courts of the County of Sacramento

11

are unable to meet this constitutional standard.

12

44.

As set forth above, Sections 3 1 7 and 3 1 7(c) of the California Welfare and Institutions

13

Code afford children in dependency proceedings with a state law entitlement to competent assistance

14

of counsel with a caseload that ensures adequate representation. These children also have federal law

15

entitlements arising from the Child Welfare Act, 42 U.S.C. § § 670 et seq., and the Child Abuse

16

Prevention and Treatment and Adoption Reform Act ("CAPTA"), 42 U.S.C. § 5 1 0 1 et seq. These

17

entitlements are cognizable property interests under the Due Process Clauses of the State and Federal

18

Constitutions. Children in dependency proceedings are unconstitutionally deprived of these property

19

interests when they are provided with court-appointed counsel that cannot provide competent or

20

adequate representation.

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45 .

Moreover, the actions and inactions of the Defendants have resulted in the deprivation

22

of the substantive due process rights conferred upon these children by the Fourteenth Amendment of

23

the United States Constitution.

24

46.

Article I, § 1 of the California Constitution ensures that " [a]ll people are by nature free

25

and independent and have inalienable rights. Among these are . . . pursuing and obtaining safety.''

26

Because children in dependency proceedings are subject to overloaded tribunals and have court-

27

appointed counsel that are unable to safeguard their protection, safety, and physical and emotional

28

well-being, Defendants' actions and inactions violate this inalienable right.
15
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 16 of 29

1

47.

For all periods relevant to this Complaint, California has agreed to administer its foster

2

care program pursuant to the Child Welfare Act, related regulations, and policies promulgated by the

3

Secretary of the United States Department of Health and Human Services. 42 U.S.C. § 67 1 (a)(22) of

4

the Child Welfare Act provides that "the State shall develop and implement standards to ensure that

5

children in foster care placements in public or private agencies are provided quality services that

6

protect the safety and health of the children." The systemic failings of dependency proceedings

7

caused by Defendants' actions and inactions violate § 671 (a)(22) of the Child Welfare Act in at least

8

two ways: ( 1 ) in the County of Sacramento, children in dependency proceedings are, in and of

9

themselves, not "quality services that protect the health and safety of children"; and (2) because

10

attorneys for children cannot and do not provide effective representation, which means that children

11

are not able to obtain access to health and safety programs that they are eligible for, have no safety

-

12

net, and are not adequately protected given the excessive caseloads of their court-appointed counsel

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and court referees. Court-appointed counsel are, among other things, unable to "investigate their

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[child clients'] interests beyond the scope of the juvenile proceeding" or "report to the courts other

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interests of the children that may need to be protected by the institution of other administrative or

16

judicial proceedings," as required by CAL. WELF. & INST. CODE § 3 1 7(e).

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48.

Plaintiffs are informed and believe, and on the basis of such information and belief

18

allege that for all periods relevant to this Complaint, the State of California has received federal

19

funding pursuant to CAPT A to assist California in supporting its programs for abused and neglected

20

children. To receive federal money under CAPTA, a state must submit a State Plan outlining the

21

areas of child protective services the state intends to address with the funding, and it must ensure that

22

it is complying with the statutory provisions. See 42 U.S.C. § 5 1 06a(b)(l)(A), (b)(2)(A)(ix).

23

CAPTA specifically requires:

24
25
26
27
28

[T]hat in every case involving an abused or neglected child which
results in a judicial proceeding, a guardian ad litem, who has
received training appropriate to the role, and who may be an
attorney or a court appointed special advocate who has received
training appropriate to that role (or both), shall be appointed to
represent the child in such proceedings(I) to obtain first-hand, a clear understanding of the situation and
needs of the child; and
16
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 17 of 29

1
2

(II) to make recommendations to the court concerning the best
interests of the child.

3

42 U . S. C. § 5 1 06a(b)(2)(A)(ix) (emphasis added).
49.

4
5

Sacramento must be represented by a properly trained guardian ad litem who is charged with

6

representing the child in those proceedings for these purposes. Court-appointed counsel serve as

7

guardians ad litem for these children. For all the reasons given above, these children are deprived of

8

their federal rights under 42 U.S. C. § 5 1 06a(b)(2)(A)(ix) because their guardians ad litem can neither

9

obtain a first-hand, clear understanding of a child' s situation and needs, nor make recommendations

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E.

The Caseloads of the Court-Appointed Attorneys Prevent Them from Providing
Adequate, Effective, or Competent Legal Assistance to Their Clients

50.

Pursuant to a Standing Order of the Superior Court of the County of Sacramento, third

12
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to the court concerning the best interests of the child.

11

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Accordingly, every child who is subject to dependency proceedings in the County of

16
17

party, court-appointed attorneys are automatically appointed to represent each child who i s the
subject of dependency proceedings in that county, and are also appointed as the child' s guardian ad
litem.
5 1.

Plaintiffs are informed and believe, and on the basis of such information and belief

18

allege that the staff attorneys for the non-profit agency, who serve as court-appointed counsel for the

19

approximately 5 , 1 00 children subject to dependency proceedings in the County of Sacramento, carry

20

as many as 3 95 cases at a time - more than double the 1 88 caseload standard established by the

21

Judicial Council of California ("Judicial Council"), and nearly four times the number promulgated by

22

the National Association of Counsel for Children ("NACC"). And, their caseloads are growing

23

dramatically. By the end of 2008, these court-appointed attorneys handled over 235 new cases per

24

month. By contrast, they handled around 1 75 new cases per month one year earlier.

25

As a consequence, the appointed lawyers for these children are unable to adequately perform even the

26

minimum tasks required of such counsel under law and in accordance with the American Bar

27

Association' s ("ABA") standards. The overloaded lawyers rarely meet with their child clients in

28

their foster care placements, rely on brief telephone contact or courtroom exchanges to communicate,
17
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 18 of 29

1

have no time to conduct complete case investigations or client-specific legal analysis, virtually never

2

file extraordinary writs or pursue appeals, and are forced to rely on overworked county social

3

workers and thus cannot meaningfully assess each client's placement or conduct an informed review

4

of Child Protective Services' ("CPS") placement decisions.

5

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These staggering caseloads are far in excess of those set forth by the Judicial Council

6

and NACC and have led partly responsible for a high attorney turnover. Plaintiffs are informed and

7

believe, and on the basis of such information and belief allege that twenty-two attorneys have left the

8

nonprofit organization, which provides counsel for the foster children pursuant to the court-

9

appointments, just within the last two years, with the majority of these attorneys having been

10

employed for less than one year. For each attorney that departs, the child client must muster the

11

strength to share his or her story, yet again, with a strange adult that the child is told to trust - an

12

adult the child is told will be there to fight for him or her. Unfortunately, the child has already seen a

13

myriad of "trustworthy adults" leave him or her behind for better opportunities. Insufficient funding

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14

makes it impossible for nonprofit organizations to offer its attorneys salaries commensurate with

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those paid by the County of Sacramento to similarly-tasked attorneys, which also contributes to the

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16

high attrition rate. In fact, these court-appointed attorneys are paid significantly less than what

17

attorneys with comparable backgrounds earn if they work for the County of Sacramento. To make

18

matters worse, high turnover exacerbates attorney caseloads by forcing the attorneys who remain on

19

staff to shoulder the caseloads of the departed attorneys while their replacements are trained.

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53.

These overloaded attorneys cannot adequately, effectively, or competently represent

21

the foster children of the County of Sacramento as required by federal and state statutory and

22

constitutional law. The court-appointed attorneys are unable to meet regularly with their clients. In

23

fact, months may pass between meetings. The needs of a child change on a weekly, if not daily,

24

basis. This is particularly true when they are shuffled around between new homes and schools.

25

Without regular contact, the court-appointed attorneys are incapable of adequately assessing or

26

representing their clients' needs. Moreover, they routinely are unable to contact social workers and

27

other professionals associated with their clients' cases, greatly hindering their abilities to develop

28

their clients' cases or identify appropriate family and professional resources for the children. Often, a
18
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 19 of 29

1

foster care placement that is in trouble can be saved when appropriate resources are in place. When

2

these resources are not properly addressed, the child is simply moved, leading to phenomenon known

3

as "foster care drift". Throughout this drift, the child's needs are not addressed but, instead, the

4

problems are simply moved along. Further, critical pleadings, motions, responses, and objections

5

often are neglected. Overworked social workers sometimes miss or are forced to ignore court orders.

6

Without an attorney to file motions to enforce the court orders, a child may go without, for example,

7

mandated visits with family members. The delay of court-ordered visitation can then lead to a delay

8

of family reunification and permanence - the goal of the dependency system. And when a child

9

inevitably shifts from one attorney to another due to regular turnover, the new attorney wastes

10

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precious time trying to come up to speed and risks missing key issues.

11

54.

Plaintiffs are informed and believe, and on the basis of such information and belief

12

allege that the appeals process does not fare any better. Due to their excessive caseloads, the court-

13

appointed attorneys are rarely able to spend any or sufficient time pursuing their clients ' interests on

14

appeal or by extraordinary writ. Extraordinary writs are a vital tool in dependency proceedings as it

15

is through this avenue that many of the juvenile court's interim orders, such as placement decisions,

16

are reviewed. This problem is exacerbated by the fact that the nonprofit organization's staff does not

17

have enough time or money to establish a writ or appellate division or to train its attorneys in the

18

specialized practice of seeking writs. As a result, in the last four years, these court-appointed

19

attorneys have taken only two extraordinary writs - one of which was handled by outside pro bono

20

counsel. This means that hundreds of children have been forced to remain in placements or adhere to

21

visitation plans simply because there was no attorney available to take the next legal step in their

22

case.

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F.

Unlawful Caseloads are D u e to Inadequate Funding

24

55.

Plaintiffs are informed and believe, and on the basis of such information and belief

25

allege that for years, the Superior Court of Sacramento paid for the court-appointed attorneys'

26

services pursuant to the MOU. In 2008, however, the Superior Court of Sacramento agreed to

27

participate in California ' s Dependency Representation, Administration, Funding, and Training

28

("DRAFT") program. Initiated in July 2004, DRAFT was established by the Judicial Council to
19
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 20 of 29

1

centralize the administration of court-appointed counsel services within the AOC. Accordingly,

2

when Sacramento County j oined the DRAFT program, the AOC became responsible for paying for

3

the court-appointed attorneys' services.

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56.

Plaintiffs are informed and believe, and on the basis of such information and belief

5

allege that if the AOC had followed its own guidelines for DRAFT in funding the court-appointed

6

attorneys, these attorneys could have met the recommended judicial council caseload standards.

7

Assuming an aggregate caseload of 4,500 children, DRAFT guidelines provide that the court-

8

appointed attorneys should receive funding sufficient to maintain 24 staff attorneys, 3 . 5 supervisors,

9

and 1 2 social workers. The guidelines do not envision that supervisors will carry cases.

10

Accordingly, each case-carrying attorney would be responsible for 1 8 8 cases and be assisted by a

11

half-time social worker.

12

57.

Plaintiffs are informed and believe, and on the basis of such information and belief

13

allege that the staggering caseloads of attorneys and Dependency Court judges result from the

14

funding practices of Defendants. The AOC's funding is disparate and seemingly arbitrary, at least to

15

the extent that caseloads are concerned. For example, the AOC provides the children's court­

16

appointed attorneys with essentially the same level of funding that it provides to Alameda County

17

(roughly $2.6 million) even though Alameda County has less than half of Sacramento's caseload

18

(2,300 dependency cases as compared to Sacramento' s 5 , 1 00). Indeed, despite the growth of the

19

caseload in 2008, the AOC has threatened to reduce the funding for the children's court-appointed

20

attorneys by 1 0% .

21

58.

Plaintiffs are informed and believe, and o n the basis o f such information and belief

22

allege that to make matters worse, the AOC expects to reduce DRAFT funding state-wide by 1 0% in

23

its next funding round. Consequently, we will likely see the already-insufficient funding for court-

24

appointed attorneys reduced by 1 0%.

25

FACTUAL ALLEGATIONS REGARDING THE PLAINTIFFS

VI.

26

A.

E.T.

27

59.

E.T. is a 1 4-year-old girl who is in her third foster care placement in less than one

28

year. She is a special education student who has been diagnosed with depression. She was assigned
20
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 21 of 29

1

a court-appointed attorney in October 2008, and she has had two attorneys in the short time since

2

then.

3

hearings, her attorneys have met with her briefly only three times. Further, the County filed an

5

amended petition with the Court, and her attorney was unable to discuss it with her beforehand.

7
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Her lawyers have had little contact with her. Although her case has had 14 court

4

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60.

61.

E.T. ' s lawyers have been unable to stabilize her foster care placements. She has only

been visited by a lawyer at one placement.
62 .

E.T. ' s lawyers also have been unable to investigate E.T.'s mental health issues and

notify the Dependency Court on her behalf of any problems. Thus, consistent with the other

10

Plaintiffs, E.T. ' s attorneys have not, and are not, investigating this special education student's

11

interests beyond the scope of the j uvenile proceeding.

12

B.

K. R.

13

63 .

K.R. is a 1 3-year-old girl who is in her fifth foster care placement. She suffers from

14

severe behavioral problems, including oppositional defiance disorder. She was assigned a court-

15

appointed attorney in early 1 996. When her case was reopened in September 2005 , she was again

16

assigned a court-appointed legal representative. K.R. has had six attorneys since then.

17

64.

K.R. ' s lawyers have had almost no contact with her. Although her case has had 1 7

18

court hearings since September 2005, she has been interviewed only once outside of court (by a

19

social worker). Further, her lawyers have not visited any of K.R. ' s foster care placements, nor have

20

they had any contact with school personnel.

21

65.

Court-appointed counsel' s investigation has been limited to some interviews with

22

K.R. ' s relatives years ago, early in the representation. Virtually nothing has been done to investigate

23

K.R. ' s interests beyond the scope of the Dependency Court proceeding. Her attorneys have been

24

unable to file pleadings, motions, responses, or obj ections as necessary to protect her interests.

25

Further, K.R. ' s lawyers have failed to stabilize her foster care placements, determine whether she

26

requires any services from the DHHS, or secure a proper educational placement.

27

c.

C.B.

28

66.

C.B. is a 1 7-year-old, developmentally disabled girl in over her tenth foster care
21
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 22 of 29

1

placement. She was assigned a court-appointed attorney on February 1 7, 1 999, and she has had 1 0

2

attorneys over the last 1 0 years.

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C . B . ' s case has had five court and administrative hearings. Her lawyers did not meet

with her before the maj ority of those hearings .
68.

Further, C.B. ' s lawyers have been unable to file pleadings, motions, responses, or

6

objections as necessary to protect her interests. They likewise have done little to investigate C.B. ' s

7

needs and emotional health beyond the scope of the juvenile proceeding, or to ensure that she is in a

8

stable foster care placement. For instance, they have not visited her in at least 7 of her 1 0

9

placements.

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69.

C.B. has a sibling who has been adopted and has a post-adoption contact agreement to

11

allow C.B. to see her sibling. C.B . ' s lawyers have been unable to ensure compliance with this

12

agreement. In addition, she has an adult sibling and no efforts have been made by her attorneys to

13

contact him.

14

70.

C.B. operates at an early grade school level with social skills that are similarly

15

inconsistent with her age. C.B . ' s lawyers have been unable to investigate her educational interests to

16

assess whether her interests need to be protected by the institution of other administrative or judicial

17

proceedings.

18

71 .

In addition, C.B. will "age out" of the foster care system when she turns 1 8 in

19

September. Her attorneys have not had any time to assess whether C .B . ' s psychological and

20

developmental issues require that she be allowed to remain in the system until she is 2 1 .

21

D.

G.S.

22

72.

G.S. is a 1 8-year-old, emotionally disturbed boy in his tenth foster care placement. He

23
24
25
26

has had 1 1 attorneys since he first entered the dependency system on May 3, 200 1 .
73 .

G.S.'s case has had 28 court and administrative hearings. His lawyers did not meet

with him before the maj ority of those hearings - including the original detention hearing.
74.

Further, G.S. 's lawyers have been unable to file pleadings, motions, responses, or

27

objections as necessary to protect his interests. They likewise have done little to investigate G.S. ' s

28

needs and emotional health beyond the scope of the juvenile proceeding, or to ensure that he is in a
22
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 23 of 29

1

stable foster care placement. For instance, they have not visited him in at least 9 of his 1 0

2

placements.

3

75.

4

example, the Sacramento County Department of Health and Human Services ("DHHS") has been

5

ignoring a court order that G.S. be allowed to be visited by his siblings. G.S . ' s counsel nonetheless

6

has done nothing to enforce this order, and G. S . continues to have no access to his siblings.

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G. S . ' s lawyers also have been unable to ensure compliance with court orders. For

76.

In addition, G.S .'s attorneys have not yet assessed whether G.S. ' s psychological issues

8

will require that he be allowed to remain in the system until he is 2 1 have made no efforts thus far to

9

address his potential imminent transition to life outside of the foster care system.

10

VII.

11

FIRST CLAIM

12

Deprivation of Federal Constitutional Rights in Violation of 42 U.S.C. § 1983

CLAIMS

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77.

The preceding paragraphs are incorporated as if set forth here in full .

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A.

Procedural Due Process Violations From Excessive Attorney Caseloads

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78.

The foregoing actions and inactions of Defendants have deprived Plaintiffs and Class

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Members of their right to adequate and effective legal representation in both dependency proceedings

17

and subsequent appeals, in violation of Plaintiffs' and Class Members' right not to be deprived of

18

liberty and property without due process of law under the Fourteenth Amendment to the United

19

States Constitution.
79.

20

The foregoing actions and inactions of Defendants also deprive Plaintiffs and Class

21

Members of state and federally created liberty or property rights without due process of law, in

22

violation of the Fourteenth Amendment to the United States Constitution. The state law entitlement,

23

of which Plaintiffs and Class Members have a protected interest, arises from the right to have

24

competent assistance of counsel with a caseload that ensures adequate or competent representation, as

25

guaranteed by CAL. WELF & INST. CODE § § 3 1 7(c) and 3 1 7. 5 . The federal law entitlements, of

26

which Plaintiffs and Class Members have a protected interest, arise from the Child Welfare Act, 42

27

U.S.C. § § 670 et seq., and CAPTA, 42 U.S.C. §55 1 0 1 et seq.

28

///

23
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 24 of 29

2

B.

Substantive Due Process Violations From Excessive Attorney Caseloads

80.

Further, the foregoing actions and inactions of Defendants constitute a failure to

3

exercise an affirmative duty to protect the welfare of Plaintiffs and Class Members, which is a

4

substantial factor leading to, and the proximate cause of, violation of Plaintiffs' and Class Members'

5

constitutionally protected liberty and privacy interests. The foregoing actions and inactions constitute

6

a policy, pattern, practice and/or custom that is inconsistent with the exercise of reasonable

7

professional judgment and amounts to deliberate indifference to Plaintiffs' and Class Members'

8

serious and constitutionally protected rights and liberty and privacy interests. As a result, Plaintiffs

9

and Class Members have been, and are being, deprived of the substantive due process rights

10

conferred upon them by the Fourteenth Amendment of the United States Constitution. Defendants

11

have arbitrarily and capriciously deprived Plaintiffs and Class Members of their due process rights in

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the absence of any countervailing state interest.

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These substantive due process rights include, but are not limited to, the right to

protection from unnecessary harm while in government custody; the right to a living environment

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that protects foster children' s physical, mental, and emotional safety and well-being; the right to

16

services necessary to prevent foster children from deteriorating or being harmed physically,

17

psychologically, or otherwise while in government custody, including, but not limited to, the right to

18

safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning

19

and services directed toward ensuring that the child can leave foster care and grow up in a permanent

20

family, and adequate medical, dental, psychiatric, psychological, and educational services; the right

21

not to be deprived of liberty by retention in government custody or locked detention facilities beyond

22

necessity; the right to treatment and care consistent with the purpose of assumption of custody by the

23

County of Sacramento; the right not to be retained in custody longer than is necessary to accomplish

24

the purposes to be served by taking the child into custody; and the right to receive care, treatment,

25

and services determined and provided through the exercise of accepted, reasonable, professional

26

judgment.

27

c.

Procedural Due Process Violations From Excessive Judicial Caseloads

28

82.

Further, the foregoing actions and inactions of Defendants deprive Plaintiffs and Class

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24
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 25 of 29

1

Members of a fair and adequate tribunal to hear and decide the dependency proceedings to which

2

they are subj ect. Thus, Dependency Court hearing officers are routinely unable to obtain and

3

evaluate the sufficiency of the information provided to them in and of itself, and proportional to the

4

liberty interests and other constitutional-level interests at stake for the children. Accordingly,

5

Plaintiffs and Class Members have no meaningful opportunity to be heard in their dependency

6

proceedings, thus depriving them of due process of law in violation of the Fourteenth Amendment to

7

the United States Constitution.

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The violation by Defendants, and each of them, of the foregoing procedural and

substantive due process rights deprives Plaintiffs and Class Members of their federal rights,
privileges, and immunities under color of state law in violation of 42 U.S.C. § 1 983 .
84.

Plaintiffs and Class Members have suffered injury that is irreparable in nature as the

12

proximate result of the failure of Defendants, and each of them, ( 1 ) to enable the SCA to provide

13

Plaintiffs and Class Members with adequate, effective, and competent assistance of counsel and (2)

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maintain a Dependency Court system with a reasonable caseload that i s capable of providing

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Plaintiffs and Class Members with a meaningful opportunity to be heard. Plaintiffs and Class

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Members are without an adequate remedy at law.

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SECOND CLAIM

18

Deprivation of Rights under the Federal Child Welfare Act in Violation of 42 U.S.C. § 1983

19

85 .

The preceding paragraphs are incorporated as if set forth here in full.

20

86.

As set forth above, the Dependency Court system in Sacramento County is

21

overloaded. CPS social workers are overworked and labor under internal, systemic policies that have

22

been criticized by outsiders for years, and thus cannot be relied upon to provide complete or accurate

23

information about children involved in dependency proceedings. Accordingly, the children' s court-

24

appointed attorneys are not fully informed. That, coupled with their excessive caseloads, renders the

25

attorneys unable t o adequately, effectively or competently represent the interests of their child clients

26

or meet their minimum responsibilities in doing so, as expressed in state and federal law. Judicial

27

referees likewise carry overly burdensome caseloads that make it impossible to safeguard the health

28

and safety of children in Dependency Court proceedings when the counsel for children who are the
25
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 26 of 29

1

centerpiece of the proceeding are unable to meet their obligations, thus depriving Dependency Courts

2

with argument, authorities, and information that because of their own caseloads they cannot obtain

3

for themselves. Accordingly, the actions and inactions of Defendants place Plaintiffs and Class

4

Members at risk and constitute a failure to "develop or implement standards to ensure that children in

5

foster care placements in public or private agencies are provided quality services that protect the

6

safety and health of the children," in violation of 42 U.S.C. § 67 1 (a)(22) of the Child Welfare Act.

7

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87.

The violation by Defendants, and each of them, of the foregoing federal rights

8

deprives Plaintiffs and Class Members of their federal rights, privileges, and immunities under color

9

of state law in violation of 42 U.S.C. § 1 983 .

10

THIRD CLAIM

11

Deprivation of Rights under the Child Abuse Prevention and Treatment and Adoption Reform

12

Act in Violation of 42 U.S.C. § 1 983

13

88.

The preceding paragraphs are incorporated as if set forth here i n full.

14

89.

As set forth above, Plaintiffs' and Class Members' overworked, court-appoint counsel

15

- as their guardians ad litem - are incapable of representing their child clients in dependency

16

proceedings. Among other things, their counsel cannot conduct meaningful investigations within and

17

beyond the scope of the juvenile proceeding to obtain, first-hand, a clear understanding of their child

18

clients' situation and needs and are unable to make any recommendations to the Dependency Court

19

concerning the best interests of their child clients. As a result of the foregoing actions and inactions

20

of Defendants, Plaintiffs and Class Members have been deprived of their right to a guardian ad litem

21

in dependency proceedings in violation of 42 U.S.C. § 5 1 06a(b)(2)(A)(xiii) of CAPTA.

22

90.

The violation by Defendants, and each of them, of the foregoing federal rights

23

deprives Plaintiffs and Class Members of their federal rights, privileges, and immunities under color

24

of state law in violation of 42 U.S.C. § 1 98 3 .

25

FOURTH CLAIM

26

Violation of Art. I, § 1 of the California Constitution

27

91.

The preceding paragraphs are incorporated as if set forth here in full.

28

92.

The foregoing actions and inactions of Defendants constitute a failure to provide
26
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 27 of 29

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Plaintiffs and Class Members with fair and adequate tribunals and with adequate and effective legal

2

counsel whose duty is to safeguard, and whose adequate and effective assistance is necessary to

3

safeguard, their protection, safety, and physical and emotional well-being, thereby violating their

4

inalienable right to pursue and obtain safety under the California Constitution. CAL. CONST. Art. I,

5

.§ 1 .

6

FIFTH CLAIM

7

Violation of Art. I, § 7 of the California Constitution

8

93 .

The preceding paragraphs are incorporated as if set forth here in full .

9

94.

The foregoing actions and inactions of Defendants have deprived Plaintiffs and Class

10

Members of their right to adequate and effective legal representation in both dependency proceedings

11

and subsequent appeals, in violation of Plaintiffs' and Class Members' right not to be deprived of

12

liberty and property without due process of law under the California Constitution. CAL. CONST.

13

Art. I, § 7.

14

95 .

The foregoing actions and inactions of Defendants also deprive Plaintiffs and Class

15

Members of state and federally created liberty or property rights without due process of law. The

16

state law entitlement of which Plaintiffs and Class Members have a protected interest arises from the

17

right to have competent assistance of counsel with a caseload that ensures adequate representation, as

18

guaranteed by CAL. WELF & INST. CODE § § 3 1 7(c) and 3 1 7. 5 . The federal law entitlements, of

19

which Plaintiffs and Class Members have a protected interest, arise from the Child Welfare Act, 42

20

U.S.C. § § 670 et seq. , and CAPTA, 42 U.S.C. §55 1 0 1 et seq.

21

96.

Further, these actions and inactions deprived Plaintiffs and Class Members of a fair

22

and adequate tribunal to hear and decide their dependency proceedings. Accordingly, Plaintiffs and

23

Class Members have no meaningful opportunity to be heard in their dependency proceedings, thus

24

depriving them of due process of law.

25

SIXTH CLAIM

26

Welf. & Inst. Code § 3 17(c)

27

97.

The preceding paragraphs are incorporated as if set forth here in full.

28

98.

As a result of the foregoing actions and inactions of Defendants, Plaintiffs and Class
27
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 28 of 29

1

Members have been deprived of their right to representation by counsel with caseloads that ensure

2

adequate representation in dependency proceedings, in violation of CAL. WELF & INST. CODE §

3

3 1 7(c).

4

SEVENTH CLAIM

5

Welf. & Inst. Code § 3 17.S(b)

6

99.

The preceding paragraphs are incorporated as if set forth here in full.

7

1 00.

As a result of the foregoing actions and inactions of Defendants, Plaintiffs and Class

8

Members have been deprived of their right to representation by competent counsel in their

9

dependency proceedings in violation of CAL. WELF & INST. CODE § 3 1 7 . 5 .

10

PRAYER FOR RELIEF

11

1.

For the foregoing reasons, Plaintiffs request the following relief:

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2.

For an order certifying the proposed Class herein under Rule 23b (2) o f the Federal

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Rules of Civil Procedure and appointing Plaintiffs' and Plaintiffs' counsel of record to represent that
Class;

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3.

For a declaratory judgment that due to Defendants' actions or inactions, Defendants,

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17
18
19
20
21
22
23
24
25
26
27
28

and each of them, violated, continue to violate, and/or will violate:
A.

Plaintiffs ' and Class Members' rights under the Due Process Clause of the

Fourteenth Amendment of the United States Constitution;
B.

Plaintiffs' and Class Members' rights under 42 U . S . C. § 67 1 (a)(22) of the

Child Welfare Act;
C.

Plaintiffs' and Class Members' rights under 42 U.S.C. § 5 1 06a(b)(2)(A)(xiii)

of CAPTA;
D.

Plaintiffs' and Class Members' inalienable right to safety under Art. I, § 1 of

the California Constitution;
E.

Plaintiffs' and Class Members' rights under the Due Process Clause of Art. I, §

7 of the California Constitution;
F.

Plaintiffs' and Class Members' right to representation by counsel in their

dependency proceedings with a caseload that ensures adequate representation under CAL.
28
COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 Case 2:09-cv-01950-FCD-DAD Document 2 Filed 07/16/09 Page 29 of 29

1

WELF. & INST. § 3 1 7(c); and
G.

2
3

their dependency proceedings under CAL. WELF. & INST. § 3 1 7. 5 ;

4

4.

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Defendants, and each of them, be temporarily and permanently enjoined from

5

currently and continually violating Plaintiffs' and Class Members' constitutional and statutory rights

6

under state and federal law;

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Plaintiffs' and Class Members' right to representation by competent counsel in

5.

For an order mandating that Defendants provide the additional resources required to

8

comply with the Judicial Council of California and the National Association of Counsel for

9

Children's recommended caseloads for each court-appointed attorney;

10

6.

Costs and attorney' s fees under 42 U.S.C. § 1 988; and

11

7.

Such other relief as the Court deems proper.

12
13

DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for all issues that are so triable .

14
15

Dated: July 1 6, 2009

WINSTON & STRAWN LLP

16
17

By:
. Cohen
Robyn allahan
Attorneys for Plaintiffs

18
19
20
21
22
23
24
25
26
27
28
29

COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 ET v. George, 681 F. Supp. 2d 1151 - Dist. Court, ED California 2010 - Google Scholar

Page 1 of 18

681 F.Supp.2d 1151 (2010)

E.T., K.R., C.B., and G.S., by their next friend, Frank Dougherty, on their behalf and on behalf
of all those similarly situated, Plaintiffs,
v.
Ronald M. GEORGE, Chair of the Judicial Council of California, in his official capacity; William
C. Vickrey, Administrative Director of the Administrative Office of the Courts of the Judicial
Council, in his official capacity; and James M. Mize, Presiding Judge of the Superior Court of
the County of Sacramento, in his official capacity, Defendants.
No. 2:09-cv-01950 FCD DAD.
United States District Court, E.D. California.
January 7, 2010.
1155 *1155 Robyn T. Callahan, Jonathan Michael Cohen, Winston & Strawn LLP, San Francisco, CA, for Plaintiffs.
Robert A. Naeve, Jones Day, Irvine, CA, for Defendants.

MEMORANDUM AND ORDER
FRANK C. DAMRELL, JR., District Judge.
This matter is before the court on defendants Ronald M. George, William C. Vickrey, and James M. Mize's (collectively
"defendants") motion to abstain and to dismiss the complaint. Plaintiffs E.T., K.R., C.B., and G.S., by their next friend,
Frank Dougherty, (collectively "plaintiffs") oppose the motions. On November 6, 2009, the court heard oral argument
on defendants' arguments relating to justiciability. For the reasons set forth below, defendants' motion to dismiss is
GRANTED.

BACKGROUND
This case arises out of plaintiffs' allegations that the caseloads in dependency courts in Sacramento County are so
excessive that they violate federal and state constitutional and statutory provisions. Specifically, plaintiffs contend that
the overburdened dependency court system frustrates both the ability of the courts to adjudicate and provide children
with a meaningful opportunity to be heard and the effective, adequate, and competent assistance of counsel. (Compl.,
filed July 16, 2009.)

A. Dependency Court Proceedings
Dependency proceedings are conducted to protect the safety and well-being of an abused or neglected child whose
parents or guardians cannot or will not do so or who themselves pose a threat to the child. (Compl. ¶ 28.) They
commence with an initial hearing, which is held to determine whether a child falls within one of ten jurisdictional bases
of the juvenile court. Cal. Welf. & Inst.Code §§ 300, 305, 306, 311, 325 & 332. Dependency courts ultimately conduct
an evidentiary hearing regarding the proper disposition of the child. Id. §§ 319, 352, 355 & 358. In most cases, at the
disposition hearing, dependency courts "determine what services the child and the family need to be reunited and free
of court supervision." Bridget A. v. Superior Court, 148 Cal.App.4th 285, 302-03, 55 Cal.Rptr.3d 647 (2d Dist.2007).
However, the courts have a variety of options, from reuniting the family and child to removing the child from parental

http://scholar.google.com/scholar_case?case=1595246448699436363&q=related:8HXdCYy... 6/6/2013

 ET v. George, 681 F. Supp. 2d 1151 - Dist. Court, ED California 2010 - Google Scholar

Page 2 of 18

1156 custody and placing the child in foster care. See generally id. (outlining court options at *1156 disposition hearings).
After a child is placed under court supervision, subsequent court proceedings and reviews are required every six
months. Id.; see Cal. Welf. & Inst.Code §§ 364, 366.21, 366.22.
California Welfare & Institutions Code § 317 requires that counsel be appointed for children in almost all dependency
cases. (Compl. ¶ 34.) Specifically, § 317(c) provides that "[i]f a child is not represented by counsel, the court shall
appoint counsel for the child unless the court finds that the child would not benefit from the appointment of counsel."
This finding must be made on the record. Id. Pursuant to a Standing Order of the Superior Court of the County of
Sacramento, third party, court-appointed attorneys are automatically appointed to represent each child who is the
subject of dependency proceedings in the county; these attorneys are also appointed as the child's guardian ad litem.
(Compl. ¶ 50.)

B. Functions and Funding within the Dependency Court System
The Judicial Council of California is the body responsible for overseeing the statewide administration of justice in the
[1]
California courts. (Compl. ¶ 9.) As Chair of the Judicial Council, the Honorable Ronald M. George, defendant, is
responsible for the allocation of the judicial branch budget, including the allocation of relevant funds for courts and
court-appointed child representation in dependency court proceedings. (Id.) The Administrative Office of the Courts
(the "AOC") is the staff agency of the judicial council and is responsible for California's Dependency Representation,
Administration, Funding, and Training ("DRAFT") program. (Compl. ¶ 10.) DRAFT was established in July 2004 by the
Judicial Council of California to centralize the administration of court-appointed counsel services within the AOC.
(Compl. ¶ 55.) As Administrative Director, defendant William C. Vickrey is responsible for the administration of the
AOC. (Compl. ¶ 10.) Finally, the Presiding Judge of the Superior Court, the Honorable James M. Mize, defendant, is
responsible for allocating resources within the Sacramento County Superior Court in a manner that promotes the
implementation of state and local budget priorities and that ensures equal access to justice and the ability of the court
to carry out its functions effectively. (Compl. ¶ 11.) The Presiding Judge also has the authority to assign judges to
departments, such as Sacramento County Superior Court's dependency courts. (Id.)

The Superior Court of Sacramento previously paid for the court-appointed attorneys' services pursuant to a
Memorandum of Understanding. (Compl. ¶ 55.) In 2008, however, the Superior Court of Sacramento agreed to
participate in the DRAFT program. When Sacramento County joined the DRAFT program, the AOC became
responsible for paying for the court-appointed attorneys' services. (Id.)
Plaintiffs allege that the staff attorneys for the non-profit agency, who serve as court appointed counsel for the
approximately 5,100 children subject to dependency proceedings in the County of Sacramento, carry as many as 395
cases at a time. (Compl. ¶ 51.) Plaintiffs assert this is more than double the 188 caseload standard established by the
1157 Judicial Council and nearly four times the number promulgated by the National Association of Counsel *1157 for
Children. As a consequence, plaintiffs allege that the appointed lawyers are unable to adequately perform even the
minimum tasks required under the law and in accordance with the American Bar Association's ("ABA") standards.
Specifically, these lawyers rarely meet with their child clients in their foster care placements, rely on brief telephone
contact or courtroom exchanges to communicate, cannot conduct complete case investigations or child-specific legal
analysis, virtually never file extraordinary writs or pursue appeals, and rely on overworked county social workers
without conducting an informed review of Child Protective Services' ("CPS") placement decisions. (Id.) Further,
plaintiffs allege that the high caseload and inadequate salaries of these lawyers lead to high attorney turnover, which
exacerbates the problems associated with adequate representation. (Compl. ¶ 52.) Plaintiffs contend that the courtappointed attorneys' unlawful caseloads are due to inadequate funding and assert that if the AOC had followed its own
guidelines for DRAFT in funding the court-appointed attorneys, counsel could have met the recommended Judicial
Council caseload standards. (Compl. ¶ 56.)
Plaintiffs allege that the County of Sacramento has only five judicial referees, who preside over dependency
proceedings, responsible for approximately 5,100 active dependency cases. (Compl. ¶ 29.) Plaintiffs allege that this

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affords referees roughly two minutes of courtroom time per case. (Id.) Therefore, plaintiffs contend that a foster child
appearing in a Sacramento County dependency court with ineffective counsel cannot reasonably expect the judicial
referee to serve as a "backstop" and look out for his or her best interests. (Id.)

C. Named Plaintiffs
Plaintiff E.T. is a fourteen-year-old girl who is in her third foster care placement in less than one year. She is a special
education student who has been diagnosed with depression. She was assigned a court-appointed attorney in October
2008 and has had two attorneys since then. (Compl. ¶ 59.) Although E.T. has had fourteen court hearings, her
attorneys have met with her briefly only three times and have visited her at only one placement. (Compl. ¶¶ 60-61.)
They have been unable to stabilize her foster care placements. (Compl. ¶ 61.) Further, they have been unable to
investigate her mental health issues to notify the dependency court of any problems. (Compl. ¶ 62.)
Plaintiff K.R. is a thirteen-year-old girl who is in her fifth foster care placement. She suffers from severe behavioral
problems, including oppositional defiance disorder. She was assigned a court-appointed attorney in early 1996. When
her case was reopened in September 2005, she was again assigned a court-appointed legal representative. K.R. has
had six attorneys since then. (Compl. ¶ 63.) However, although her case has had seventeen court hearings since
September 2005, K.R.'s attorneys have not visited any of her foster care placements or had any contact with school
personnel. (Compl. ¶ 64.) K.R. has been interviewed only once outside of court, by a social worker, and virtually
nothing has been done to investigate K.R.'s interests beyond the scope of the dependency court proceedings. K.R.'s
attorneys have been unable to file pleadings, motions, responses, or objections as necessary to protect her interests.
Further, they have been unable to stabilize her foster care placements, determine whether she requires public
services, or secure a proper educational placement. (Compl. ¶ 65.)
1158 Plaintiff C.B. is a seventeen-year-old, developmentally disabled girl, who is in *1158 her tenth foster care placement.
She was assigned a court-appointed attorney on February 17, 1999, and she has had ten attorneys over the last ten
years. (Compl. ¶ 67.) Her attorneys have not visited her in at least seven of her ten placements. She has had five court
and administrative hearings, but her lawyers did not meet with her before the majority of those hearings. (Compl. ¶
68.) C.B.'s attorneys have been unable to file pleadings, motions, responses or objections as necessary to protect her
interests. They have done little to investigate C.B.'s needs and emotional health beyond the scope of the juvenile
proceedings or to ensure that she is in a stable foster care placement. (Compl. ¶ 68.) Further, they have failed to
ensure compliance with an agreement that C.B. be able to see her sibling, who has been adopted, or to make any
effort to meet up with her other adult sibling. (Compl. ¶ 69.) They have also been unable to investigate her educational
interests to assess whether her interests need to be protected by the institution or other administrative or judicial
proceedings. (Compl. ¶ 70.) C.B. will "age out" of the foster case system when she turns 18; her attorneys have not
had time to assess whether her psychological or developmental issues require that she be allowed to remain in the
system until she is 21. (Compl. ¶ 71.)
G.S. is an eighteen-year-old, emotionally disturbed boy in his tenth foster case placement. He has had eleven
attorneys since he first entered the dependency system on May 3, 2001. (Compl. ¶ 72.) G.S. has had 28 court and
administrative hearings, but his lawyers did not meet him before the majority of those hearings, including the original
detention hearing. (Compl. ¶ 73.) G.S.'s attorneys have been unable to file pleadings, motions, responses or
objections as necessary to protect his interests. They have done little to investigate G.S.'s needs and emotional health
beyond the scope of the juvenile proceedings or to ensure that he is in a stable foster placement, including failing to
visit him in nine of his ten placements. (Compl. ¶ 74.) They have also failed to ensure compliance with court orders,
including one that allows him to visit his siblings. (Compl. ¶ 75.) Further, his attorneys have not had time to assess
whether his psychological issues require that he be allowed to remain in the system until he is 21 or make efforts
relating to his potential imminent transition to life outside the foster care system. (Compl. ¶ 76.)

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D. The Litigation
On July 16, 2009, plaintiffs filed suit in this case, by their next friend Frank Dougherty, on behalf of themselves and all
others similarly situated, specifically,
All children currently and hereafter represented by court-appointed counsel in juvenile dependency
proceedings in the Sacramento County Superior Court.
(Compl. ¶ 12.) They assert federal claims under 42 U.S.C. § 1983 arising out of alleged (1) procedural due process
violations from excessive attorney caseloads; (2) substantive due process violations from excessive attorney
caseloads; (3) procedural due process violations from excessive judicial caseloads; (4) deprivation of rights under the
Federal Child Welfare Act ("FCWA"); and (5) deprivation of rights under the Child Abuse Prevention and Treatment
and Adoption Reform Act ("CAPTA"). Plaintiffs also assert state law claims arising out of alleged (1) violation of the
inalienable right to pursue and obtain safety set forth in Article I, § 1 of the California Constitution for failure to provide
1159 fair and *1159 adequate tribunals and effective legal counsel; (2) violation of due process as guaranteed in Article I, §
7 of the California Constitution for failure to provide adequate and effective legal representation in dependency
proceedings; (3) violation of Welfare and Institutions Code § 317(c); and (4) violation of Welfare and Institutions Code
§ 317.5(b).
Through this action, plaintiffs seek a declaratory judgment that defendants have violated, continue to violate, and/or
will violate plaintiffs' rights as guaranteed by the above constitutions and statutes. Plaintiffs also seek injunctive relief,
restraining future violations of these rights, and an order "mandating that [d]efendants provide the additional resources
required to comply with the Judicial Council of California and the National Association of Counsel for Children's
recommended caseloads for each court-appointed attorney." (Prayer for Relief.)

STANDARD
Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is
and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319,
322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The court is bound to give plaintiff the benefit of every reasonable
inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn,
373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). A plaintiff need not allege "`specific facts' beyond those
necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United
States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir.1986). While Rule 8(a) does not require detailed
factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129
S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the
elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1950 ("Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it
is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have

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violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).
1160 *1160 Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim
to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Only where a plaintiff has failed to "nudge [his or her] claims across the line
from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is
not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully."
Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 1950.
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which
may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. Of Mary Hospital, 844 F.2d
646, 649 (9th Cir.1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F.Supp.2d 1035, 1042
(C.D.Cal.1998).

ANALYSIS
Plaintiffs' claims describe critical dependency court system failures, which adversely affect the lives of thousands of
children. The complaint depicts a court system in which the voices of these children are not heard and their stories are
not told while important decisions affecting their health and welfare are being made.
While acknowledging the gravity of these issues, defendants assert that such claims are nonjusticiable. Specifically,
defendants assert that "the complaint impermissibly attempts to embroil this court in administration and funding of the
dependency courts in the Superior Court of Sacramento County." (Defs.' Mot. to Dismiss, filed Sept. 18, 2009, at 15.)
Defendants contend that plaintiffs' claims implicate duties involving state judicial processes that cannot be properly
determined by a federal court and plaintiffs seek remedies that cannot be molded without violating established
principles of equity, comity, and federalism.
"The judicial power of the United States defined by Art[icle] III is not an unconditioned authority to determine the
constitutionality of legislative or executive acts." Valley Forge Christian Coll. v. Americans United For Separation of
Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Rather, Article III limits "the federal
judicial power `to those disputes which confine federal courts to a role consistent with a system of separated powers
and which are traditionally thought to be capable of resolution through the judicial process.'" Id. at 472, 102 S.Ct. 752
(quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)); Steel Co. v. Citizens For A Better
Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
Cases are thus nonjusticiable when the subject matter of the litigation is inappropriate for federal judicial consideration.
Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In determining whether a case is justiciable,
"consideration of the cause is not wholly and immediately foreclosed; rather, the [c]ourt's inquiry necessarily proceeds
to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and
1161 whether protection for the right asserted can be *1161 judicially molded." Id. "It is the role of the courts to provide relief
to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of
courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the
laws and the Constitution." Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). These basic
concerns are heightened when a lawsuit challenges core activities of state responsibility. Rizzo v. Goode, 423 U.S.
362, 378-79, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).
"Since the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit
state courts to try state cases free from interference by federal courts." Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971). This desire is premised upon the fundamental and vital role of comity in the formation of
this country's government and "perhaps for lack of a better and clearer way to describe it, is referred to by many as

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`Our Federalism.'" Id. at 44, 91 S.Ct. 746. Our Federalism demonstrates "a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance
of the belief that the National Government will fare best if the States and their institutions are left free to perform their
separate functions in separate ways." Id. It represents "a system in which there is sensitivity to the legitimate interests
of both State and National Governments, and in which the National Government, anxious though it may be to vindicate
and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with
the legitimate activities of the States." Id.
It is within the context of this foundational concept of comity, which strikes at the heart of the country's governing
principles, that the court must view plaintiffs' serious claims. The court is cognizant of the potential hardships inflicted
upon one of society's most vulnerable populations if plaintiff's claims are true. The court is equally cognizant of the
profound consequential principles of federalism implicated by this case. Accordingly, it is with careful attention to these
two significant but conflicting interests that the court undertakes its analysis of justiciability pursuant to its equitable
discretion and under the principles set forth by Younger v. Harris and its progeny.[2]

1. Equitable Abstention[3]
Principles of equity, comity, and federalism preclude equitable intervention when a federal court is asked to enjoin a
1162 *1162 state court proceeding. O'Shea v. Littleton, 414 U.S. 488, 499-500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The
doctrine of equity jurisprudence provides that a "court of equity should not act . . . when the moving party has an
adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. at 499, 94 S.Ct. 669.
The purpose of the doctrine of equitable abstention is to sustain "the special delicacy of the adjustment to be
preserved between federal equitable power and State administration of its own law." O'Shea v. Littleton, 414 U.S. 488,
500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (quotation omitted). If the equitable relief requested requires intrusive followup into state court proceedings, it constitutes "a form of the monitoring of the operation of state court functions that is
antipathetic to established principles of comity." Id. Indeed, the Supreme Court has recently noted that "institutional
reform injunctions often raise sensitive federal concerns." Horne v. Flores, ___ U.S. ___, 129 S.Ct. 2579, 2593, 174
L.Ed.2d 406 (2009) (holding that Court of Appeals should have inquired into whether changed conditions satisfied
statutory violations that the continuing structural reform injunction was directed to address). These "[f]ederalism
concerns are heightened when . . . a federal court decree has the effect of dictating state or local budget priorities.
States and local governments have limited funds. When a federal court orders that money be appropriated for one
program, the effect is often to take funds away from other important programs." Horne, 129 S.Ct. at 2593-94.
"When the relief sought would require restructuring of state governmental institutions, federal courts will intervene only
upon finding a clear constitutional violation, and even then only to the extent necessary to remedy that violation." Los
Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 703 (9th Cir.1992). Both the First and Fifth Circuits have adjudicated
cases relating to overburdened court systems and the substantial delays occasioned by these serious resource
allocation problems, and both Circuits have held that the doctrine of equitable abstention barred consideration of the
merits of such claims. In Ad Hoc Committee on Judicial Administration v. Massachusetts, the plaintiffs brought suit
against the state, the state legislature, and the governor of Massachusetts to compel the furnishing of additional court
facilities. 488 F.2d 1241 (1st Cir. 1973). The First Circuit noted that the Supreme Court has never found per se
unconstitutional delay in a civil case; rather, "whether delay is a violation of due process depends on the individual
case." Id. at 1244. Therefore, the First Circuit held the case was not justiciable because, in order to define the
constitutional duty, the court would have to reduce due process into formulae and timetables establishing the
maximum permissible delay, which would replace a context specific inquiry into the effect of the delay on the parties,
their diligence, the nature of the case, and the interests at stake. Id. Similarly, to determine whether that duty was
violated, the court would have to extrapolate from statistics, as opposed to considering factors such as discovery,
1163 negotiation, *1163 investigation, strategy, counsel's engagement on other matters, and even procrastination. Id. at
1245.

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Further, the Ad Hoc Committee court recognized that the relief sought would be unmanageable and outside the scope
of the federal judiciary. Specifically, the First Circuit noted
a federal judge faced with the awesome task of ordering measures to cut down the waiting period in a
state's judiciary could hardly consider merely the augmentation of resources. He would also have to
inquire into the administration of the system, its utilization of personnel, the advisability of requiring
adoption of techniques such as pre-trial conferences, different calendar arrangements, split trials, and
the like, and countless other administrative matters about which books have been written and courses
taught, and as to the relative value of which there remains much dispute.
Id. In essence, the relief requested by the plaintiff would require the court to sit as a receiver over the state court
system. Id. at 1246 (noting that "[w]hile the state judiciary might appreciate additional resources, it would scarcely
welcome the intermeddling with its administration which might follow."). Moreover, the court recognized that financing
and organization of the federal and state judiciary have been historically "left to the people, through their legislature."
Id. While, in certain circumstances, courts have ordered a state to furnish certain levels of medical or psychiatric care
to those under the states' control, in such cases, the alternative, either explicitly or implicitly, was the closure of
noncompliant institutions. Id. at 1246. Any such implied threat to close down a state court system "would amount to
little more than a quixotic and unwarranted intrusion into an entire branch of government." Id. Accordingly, the court
concluded "it would be both unprecedented and unseemly for a federal judge to attempt a reordering of state priorities"
as required by the plaintiff's requested injunctive relief. Id. at 1245-46. While "[t]he dictates of a federal court might
seem to promise easy relief, . . . they would more likely frustrate and delay meaningful reform which, in a system so
complex, cannot be dictated from outside but must develop democratically from within the state." Id. at 1246.
Similarly, in Gardner v. Luckey, the Fifth Circuit held that the claims brought by plaintiff "contemplate[d] exactly the sort
of intrusive and unworkable supervision of state judicial processes condemned [by the Supreme Court]." 500 F.2d 712,
715 (5th Cir.1974). The plaintiffs filed a class action against Florida Public Defender Offices, alleging ineffective
assistance of counsel arising out of inadequate funding and excessive caseloads. Id. at 713. The plaintiffs asked the
court to declare the Offices' caseloads excessive, to specify how excessive they were, and to enjoin acceptance of
overload cases. Id. at 713. The court held that equitable abstention barred suit because the relief requested would
require an ongoing audit of state criminal proceedings. Id. at 715. Further, the court noted that plaintiffs could file
habeas actions to challenge their custody. Id.
The Ninth Circuit, however, has held that equitable abstention did not bar federal jurisdiction in a case for declaratory
relief arising out of delays in the Los Angeles County Superior Court. Los Angeles County Bar Ass'n, 979 F.2d at 7031164 04. In Los Angeles County Bar Ass'n, the plaintiff alleged constitutional violations of *1164 its rights to access the
courts and equal protection arising out a statute that prescribed the number of judges on the court. The Ninth Circuit
distinguished the First Circuit's decision in Ad Hoc Committee and held that equitable abstention did not apply to bar
federal court jurisdiction. First, the plaintiff alleged that the average time to resolution of civil cases in the Los Angeles
County Superior Court was unconstitutional. Id. at 703. The Ninth Circuit noted that this was a less difficult question
than that before the First Circuit, whether a delay was constitutionally acceptable in any given case. Id. Second, the
plaintiff sought only declaratory, not injunctive relief. As such, the Ninth Circuit noted that any order would not directly
require supervision of the state court system by federal judges. Therefore, the Ninth Circuit concluded, "although not
without some trepidation," that the claims for declaratory relief were appropriately before it. Id. at 704.
Judge Kleinfeld, concurring in the decision, which ultimately dismissed the plaintiff's claims on the merits, disagreed
with the majority's decision regarding equitable abstention. Id. at 708-11. In noting that declaratory judgments are
discretionary, he asserted that a federal court cannot properly declare a state legislative action regarding the allocation
of judges to be wrong, "where there are no legal standards to say what number is right." Id. at 709-10. Further,
because it would be impossible to derive a standard without considering (1) "methods of judicial administration within
the state court system," (2) "the receptiveness of the state court system to various types of claims," (3) "undesirability
of delay in litigation relative to benefits of allocating resources to other uses," and (4) "many other subtle matters of
state policy which are none of our business," Judge Kleinfeld noted that the challenge lacked "judicially discoverable

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and manageable standards" and required relief based upon resolution of "policy determinations of a kind clearly for
nonjudicial discretion." Id. at 710. In short, Judge Kleinfeld asserted that the Ninth Circuit lacked the power to
adjudicate the case and noted,
The people of the State of California, through their system of elected representatives, are entitled in our
system of federalism to decide how much of their money to put into courts, as well as other activities in
which they choose to have their state government participate. The process of deciding how much
money to take away from people and transfer to the government, and how to allocate it among the
departments of government, is traditionally resolved by political struggle and compromise, not by some
theoretical legal principle.
Id.
In this case, plaintiffs' challenges to the juvenile dependency court system necessarily require the court to intrude upon
the state's administration of its government, and more specifically, its court system. First, plaintiffs claim that the
"crushing and unlawful caseloads" frustrate the ability of the dependency courts to adjudicate cases and "provide
children with a meaningful opportunity to be heard." (Compl. ¶ 22) As such, plaintiffs allege that children subject to
dependency proceedings in Sacramento County are denied a fair and adequate tribunal in violation of state and
federal law. (Id. ¶ 27.) At their core, all of plaintiffs' federal and state law claims arising out of these allegations assert
1165 that the current judicial caseload is insufficient for the dependency court judges or referees to "consider carefully *1165
what has been provided" or to "serve as a backstop and look out for [the child's] best interest." In order to declare the
current caseloads unconstitutional or unlawful, the court would necessarily have to consider, among a host of judicially
unmanageable standards, how many cases are constitutionally and/or statutorily permissible, whether each type of
case should be weighed evenly, which cases deserve more time or attention, and how much time or attention is
constitutionally and/or statutorily permissible. See Los Angeles County Bar Ass'n, 979 F.2d at 710 (Kleinfeld,
concurring). In order to attempt to mold an appropriate injunctive remedy to address the excess caseloads, the court
cannot consider only an augmentation of the dependency court's resources. Rather, the court would also have to
consider a myriad of administrative matters that affect the efficiency of the system. Further, in order to enforce any
method of injunctive relief, the court would be required to act as a receiver for the Sacramento dependency court
system, ensuring that judges were giving adequate time to each individualized case pursuant to the constitutional
and/or statutory dictates established through this proceeding. Such involvement in any state institutional system is
daunting, but the problems accompanying plaintiffs' requested relief is increased exponentially when applied to a state
judicial system. See O'Shea, 414 U.S. at 501, 94 S.Ct. 669 (noting that "periodic reporting" of state judicial officers to a
federal court "would constitute a form of monitoring of state court functions that is antipathetic to established principles
of comity"); see also Ad Hoc Committee, 488 F.2d at 1244-46.
Second, plaintiffs claim that these overwhelming caseloads prevent children from receiving "the effective, adequate
and competent assistance of counsel" in violation of state and federal law. (Compl. ¶¶ 22, 26.) Specifically, plaintiffs
allege that the 395 caseload carried by court-appointed counsel in dependency proceedings render them "unable to
adequately perform even the minimum tasks required of such counsel under law and in accordance with the American
Bar Association's ("ABA") standards." (Compl. ¶ 51.) Similar to plaintiffs' claims regarding excess caseloads in the
courts, in order to declare the current attorney caseloads unconstitutional or unlawful, the court would necessarily have
to consider through a generalized inquiry how many cases are constitutionally and/or statutorily permissible, whether
some types of cases require more investigation or preparation, which types of those cases deserve more resources,
and how much time or attention is constitutionally and/or statutorily permissible. Further, in order to mold a remedy to
the injury alleged, the court cannot consider only an increased budget for court appointed dependency counsel.
Rather, the court must consider whether that money should be directed solely at hiring more attorneys, whether more
resources need to be directed to support staff or non-legal resources, the need for larger facilities to house more
attorneys or staff, and the quality of the staff or attorneys hired. Finally, in order to enforce injunctive relief that is
carefully directed to the problems alleged, the court would have to act as an administrative manager of court-appointed
dependency counsel to ensure that any additional resources were being implemented appropriately and that counsel

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was complying with the constitutional and/or statutory guidelines set forth by the court. See Gardner, 500 F.2d at 71415.
1166 The facts before the court in this case are readily distinguishable from the facts *1166 before the Ninth Circuit in Los
Angeles County Bar Ass'n and weigh heavily in favor of finding this case nonjusticiable. In Los Angeles County Bar
Ass'n, the Ninth Circuit acknowledged that it would be very difficult for courts to determine how much delay was
constitutionally permissible in any given case, but concluded that the question presented by the plaintiff was whether
the average time to resolution in a case violated its rights. 979 F.2d at 703. However, in this case, plaintiffs do not
allege an average amount of time spent on cases by judges or court appointed attorneys to which they object. Rather,
they allege that their constitutional rights have been violated based upon their specific, individual circumstances. (See
Compl. ¶¶ 59-76.) As such, the case before the Los Angeles County Bar Ass'n court was substantially more
manageable than that before the court in this case.
Similarly, in Los Angeles County Bar Ass'n, the plaintiff was a single party challenging the facial constitutionality of a
statute due to its alleged harmful effect on the plaintiff's litigation. Accordingly, the court could undertake a "case-bycase examination" of the merits of the claim by evaluating whether the average delay deprived it of its ability to
vindicate important rights. 979 F.2d at 707. In this case, however, plaintiffs bring claims challenging the practices of a
state institution and its officers on behalf of a putative class comprised of all children represented by court-appointed
counsel in Sacramento County juvenile dependency proceedings. An ongoing "case-by-case examination" of such a
claim would not be just daunting, but virtually impossible. Indeed, to fit within the teachings of Los Angeles County Bar
Ass'n, the court would have to analyze each of the 5100 juvenile dependency court cases in order to determine
whether the lack of time or attention by counsel or the dependency court deprived the minor of the ability to vindicate
her rights under the specific circumstances of the case.
Finally, the Los Angeles County Bar Ass'n court placed great emphasis on the nature of the relief sought by the
plaintiff; it sought only declaratory, not injunctive relief. While the court noted that it was "not without some trepidation"
in exercising declaratory jurisdiction, it stressed that the relief sought would not directly require supervision of the state
court system by federal judges. However, in this case, in addition to declaratory relief, plaintiffs seek injunctive relief
that would require the court to act as an administrator and receiver of the Sacramento County dependency court
system. As such, the holding of Los Angeles County Bar Ass'n is inapplicable to the facts before the court in this case.
In sum, the claims asserted by plaintiffs and the relief requested strike at the very heart of federalism and the
institutional competence of the judiciary to adjudicate state budgetary and policy matters. Plaintiffs' claims require the
court to set constitutional parameters regarding the function of both state judicial officers and state court appointed
attorneys. The adjudication of these claims, which seek to evaluate the relationship between caseloads and fair
access to justice for children in a variety of situations, requires the implementation of standards that no court has yet to
address. See Los Angeles County Bar Ass'n, 979 F.2d at 706 ("Notwithstanding the fundamental rights of access to
the courts, [the plaintiff] does not cite, nor has our independent research revealed, any decision recognizing a right to
1167 judicial determination of a civil claim within *1167 a prescribed period of time."); Ad Hoc Committee, 488 F.2d at 1245
("To extrapolate from court statistics a picture of those cases where inability to obtain a trial has reached due process
is difficult."); cf. Caswell v. Califano, 583 F.2d 9, 16-17 (1st Cir.1978) (holding that where the plaintiffs had a statutory
right to hearing within a reasonable time after the request, the district's court imposition of a 90 day period was not an
abuse of discretion). Moreover, in adjudicating whether the Sacramento County dependency courts meet sufficient
constitutional standards, there is an implicit threat that the failure to provide constitutionally adequate services would
result either in a forced reduction of the number of cases brought on behalf of children or the closure of the court itself.
See Coleman v. Schwarzenegger, No. Civ 90-0520, No. C01-1351, 2009 WL 2430820 (E.D.Cal. Aug. 4, 2009)
(concluding that the only proper relief for prolonged "woefully and unconstitutionally inadequate" medical and mental
healthcare in the California prison system was reduction in the overall prisoner population through prisoner release).
However, any such implied threat "would amount to little more than a quixotic and unwarranted intrusion into an entire
branch of state government." Ad Hoc Committee, 488 F.2d at 1246.

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The implementation of any injunctive remedy would require an inquiry into the administration of Sacramento County's
dependency court system and the court-appointed attorneys with whom it contracts. It would also require this court to
impose it views on the budgeting priorities of the California legislature generally, and specifically on the Judicial
Council of California and the Sacramento Superior Court.[4] The process of allocating state resources lends itself to the
legislative process where people have an opportunity to petition the government regarding how their money should be
spent and remove from office those political officials who act contrary to the wishes of the majority. "The judicial
process does not share these democratic virtues." Los Angeles County Bar Ass'n, 979 F.2d at 710 (Kleinfeld,
concurring). If the court granted plaintiffs' request, it would result in a command to the state to take money from its
citizens, in the form of taxes, or from other governmental functions, in order to put more money in the Sacramento
County juvenile dependency court system.[5] While numerous parties, including the dependency courts would likely
appreciate the influx of resources, such an award, implicating the balance of budget priorities and state polices, is
beyond the institutional competence of a federal court. Rather, such injunctive relief constitutes an "abrasive and
unmanageable intercession" in state court institutions.

[6]

See O'Shea, 414 U.S. at 504, 94 S.Ct. 669.

1168 Therefore, the court concludes that principles of equity, comity, and federalism *1168 require the court to equitably
abstain from adjudicating plaintiffs' claims.

2. Younger Abstention
Generally, the Supreme Court's decision in Younger and its progeny direct federal courts to abstain from granting
injunctive or declaratory relief that would interfere with pending state judicial proceedings. Younger v. Harris, 401 U.S.
37, 40-41, 91 S.Ct. 746 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688
(1971) (holding that "where an injunction would be impermissible under these principles, declaratory relief should
ordinarily be denied as well"). The Younger doctrine "reflects a strong policy against federal intervention in state
judicial processes in the absence of great and immediate injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415,
423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). When federal courts disrupt a state court's opportunity to "intelligently
mediate federal constitutional concerns and state interests" and interject themselves into such disputes, "they prevent
the informed evolution of state policy by state tribunals." Moore, 442 U.S. at 429-30, 99 S.Ct. 2371.
While the doctrine was first articulated in the context of pending state criminal proceedings, the Supreme Court has
applied it to civil proceedings in which important state interests are involved. Id.; see Huffman v. Pursue, Ltd., 420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). "The seriousness of federal judicial interference with state civil functions
has long been recognized by the Court. [It has] consistently required that when federal courts are confronted with
requests for such relief, they should abide by standards of restraint that go well beyond those of private equity
jurisprudence." Huffman, 420 U.S. at 603, 95 S.Ct. 1200.
Therefore, in the absence of "extraordinary circumstances,"[7] abstention in favor of state judicial proceedings is
required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an
adequate opportunity to litigate federal claims. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457
U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); see San Jose Silicon Valley Chamber of Commerce Political
Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir.2008) (noting that where these standards are met, a
district court "may not exercise jurisdiction" and that "there is no discretion in the district courts to do otherwise").
"Where Younger abstention is appropriate, a district court cannot refuse to abstain, retain jurisdiction over the action,
and render a decision on the merits after the state proceedings have ended. To the contrary, Younger abstention
requires dismissal of the federal action." Beltran v. State of Cal, 871 F.2d 777, 782 (9th Cir.1988) (emphasis in
original).
The Supreme Court has held that Younger abstention is appropriately applied to broad challenges to state
1169 dependency proceedings. Moore, 442 U.S. 415, 99 S.Ct. 2371. In Moore, the appellees, husband *1169 and wife and
their three minor children, sought a declaration that parts of the Texas Family Code unconstitutionally infringed upon

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family integrity after a juvenile court judge entered an emergency ex parte order that gave temporary custody of the
children to the State Department of Public Welfare. Id. at 419-20, 99 S.Ct. 2371. The appellees moved to terminate the
temporary custody. Id. at 420, 99 S.Ct. 2371. However, instead of moving to expedite the hearing in the county court,
requesting an early hearing from state trial or appellate courts, or appealing the temporary order, appellees filed an
action challenging the constitutionality of the relevant state statutes in federal court. Id. at 421, 99 S.Ct. 2371. The
Court first concluded that there were ongoing state proceedings, even though not all of the appellee's claims directly
related to the custody determination. Specifically, the Court held that the appellee's challenge to the State's
computerized collection and dissemination of child-abuse information could be raised in the state court proceedings.
Id. at 424-25, 99 S.Ct. 2371. That the appellee's challenges constituted a "multifaceted" and broad challenge to a state
statutory scheme "militated in favor of abstention, not against it." Id. at 427, 99 S.Ct. 2371. Second, the Court
concluded that challenges to the state juvenile dependency system implicated an important state concern. Id. at 435,
99 S.Ct. 2371 ("Family relations are a traditional area of state concern."). Finally, the Court held that because state
procedural law did not bar presentation of the constitutional claims in the dependancy court proceedings, the appellees
had an adequate state court avenue for relief. In conclusion, the Court noted that it was "unwilling to conclude that
state processes are unequal to the task of accommodating the various interests and deciding the constitutional
questions that may arise in child-welfare litigation." Id. at 435, 99 S.Ct. 2371.

a. Interference with Ongoing State Proceedings
Plaintiffs first contend that there are no ongoing state proceedings where plaintiffs' or class members' claims are
currently being adjudicated. Specifically, plaintiffs assert that none of the constitutional claims asserted in this action
have been asserted in the underlying dependency court cases upon which they are based. Further, plaintiffs contend
that the constitutional and statutory claims alleged in this litigation will not interfere with ongoing state proceedings for
the purposes of the Younger analysis.
Courts have concluded that continuing state dependency proceedings, which involve the plaintiffs in a federal action
that challenges the constitutionality of the services and process received, are "ongoing state proceedings" for
purposes of Younger abstention. See 31 Foster Children v. Bush, 329 F.3d 1255, 1275 (11th Cir.2003); H.C. ex rel.
Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir.2000) (holding that the ongoing proceeding element was satisfied
because the plaintiffs' complaint sought "an order requiring procedural due process to be observed in the future course
of litigation" of the plaintiffs' pending state custody proceedings); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th
Cir.1999); Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185, 1203 (N.D.Cal.2004) (holding that challenge to
county's foster care system implicated ongoing dependency court proceedings); see also Moore, 442 U.S. at 425-27,
1170 99 S.Ct. 2371; cf. Lake v. Speziale, 580 F.Supp. *1170 1318, 1329 (D.Conn.1984) (holding that Younger abstention
did not apply in the absence of any pending state court proceeding); Johnson v. Solomon, 484 F.Supp. 278, 295-97
(D.Md.1979) (same). However, Younger abstention is only implicated "when the relief sought in federal court would in
some manner directly `interfere' with ongoing state judicial proceedings." Green v. City of Tucson, 255 F.3d 1086,
1097 (9th Cir.2001) (en banc) receded from on other grounds by Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004).
"The mere potential for conflict in the results of adjudications is not the kind of interference that merits federal court
abstention." Id. (internal quotations and citation omitted). Rather, the system of dual sovereigns inherently
contemplates the possibility of a "race to judgment." Id. "In order to decide whether the federal proceeding would
interfere with the state proceeding, [courts] look to the relief requested and the effect it would have on the state
proceedings." 31 Foster Children, 329 F.3d at 1276; see also O'Shea, 414 U.S. at 500, 94 S.Ct. 669 (holding that
abstention was proper where the proposed injunction would indirectly accomplish the same kind of interference that
Younger and subsequent cases sought to prevent).
The Eleventh Circuit has held that an action for declaratory and injunctive relief arising out of challenges to Florida's
foster care system would interfere extensively with the ongoing dependency cases of each plaintiff. 31 Foster Children,
329 F.3d at 1279. In 31 Foster Children, the plaintiffs alleged that the defendants' practices denied and threatened
their rights, inter alia, to (1) substantive due process for "safe care that meet their basic needs, prompt placements

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with permanent families, and services extended after their eighteenth birthdays"; (2) "procedural due process in
determining the services they will receive"; (3) familial association with their siblings; and (4) prompt placement with
permanent families and information provided pursuant to the Adoption Assistance and Child Welfare Act. Id. at 1261.
The plaintiffs requested that the court declare the defendants' practices unconstitutional and unlawful and grant
injunctive relief that would prevent future violations and ensure compliance. Id. The Eleventh Circuit held that the
declaratory judgment and injunction requested would interfere with the pending state proceedings in numerous ways,
including potential conflicting orders regarding what is best for a particular plaintiff, whether a particular placement is
safe or appropriate, whether sufficient efforts are being made to find an adoptive family, or whether an amendment
needs to be made to a child's plan. Id. at 1278. The court concluded that the broad implication of the relief sought was
to take the responsibility away from state courts and put it under control of the federal court. Id. at 1279. Such action
"constitute[d] federal court oversight of state court operations, even if not framed as direct review of state court
judgments that is problematic, calling for Younger abstention." Id.
Similarly, the Tenth Circuit has held that declaratory and injunctive relief directed at state institutions involving
dependant children warranted abstention because the requested relief would require a supervisory role over the entire
state program. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280; see Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir.2002). In
J.B., the plaintiffs, mentally or developmentally disabled children in the custody of New Mexico, alleged constitutional
1171 and statutory violations arising out of the failure to provide them with services, benefits, and protections *1171 in
custody determinations and treatment plans. 186 F.3d at 1282-85. The court held that the federal action would
fundamentally change the dispositions and oversight of the children because, by ruling on the lawfulness of the
defendant's action, the requested declaratory and injunctive relief would place the federal court in the role of making
dispositional decisions in the plaintiff's individual cases that were reserved to the New Mexico Children's Court. Id. at
1292-93. Therefore, the court concluded that, for purposes of Younger abstention, the federal court interfered with the
ongoing state court proceedings.
In Joseph A., the Tenth Circuit likewise concluded that Younger abstention was implicated by the broad relief
implicated by a consent decree relating to the procedures to be accorded children in the state's custody. 275 F.3d
1253. The plaintiffs, children in New Mexico's custody due to abuse or neglect, and the New Mexico Department of
Human Services had entered into a federal court consent decree, and the plaintiffs subsequently moved the court to
hold the Department in contempt for allegedly violating that consent decree. Id. at 1257. The court held that
enforcement of the consent decree would require "interference with the operations of the Children's Court in an
insidious way," in that the consent decree operated like that of an injunction or declaratory judgment that precluded the
presentation of certain options to the Children's Court. Id. at 1268-69. Further, the consent decree's restrictions were
ongoing, impacting the conduct of the proceedings themselves, not just the body charged with initiating the
proceedings. Id. at 1269. Accordingly, the court concluded that "Younger governs whenever the requested relief would
interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of the
proceeding directly." Id. at 1272.
In this case, plaintiffs seek a declaration that the judicial and attorney caseloads are so excessive that they constitute a
violation of constitutional and statutory rights. In their complaint, plaintiffs request that defendants be enjoined from
currently and continually violating their constitutional and statutory rights and that defendants provide additional
resources to reach recommended caseloads for attorneys. At oral argument, plaintiffs clarified that they also sought
the appointment of more judges in order to ease judicial caseloads. (Tr. at 31.)
Plaintiffs contend that at this stage of the litigation, the court need not contemplate the precise remedy available to
plaintiffs if they prevail on the merits; rather the court should presume that it is possible to "issue an order that avoids
Younger and conforms to the Court's sound discretion and proof at trial." (Pls.' Opp'n at 23.) However, this contention
runs counter to the Court's explanation of the appropriate inquiry regarding justiciability as set forth in O'Shea:
[T]he question arises of how compliance might be enforced if the beneficiaries of the injunction were to
charge that it had been disobeyed. Presumably any member of respondent's class who appeared...
before petitioners could allege and have adjudicated a claim that petitioner's were in contempt of the

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federal court's injunction order, with a review of an adverse decision in the Court of Appeals and,
perhaps in [the Supreme Court].
1172 414 U.S. at 501-02, 94 S.Ct. 669. Further, in evaluating whether Younger abstention *1172 applied to the plaintiffs'
challenges to the adequacy of Georgia's indigent court system, the Eleventh Circuit looked to the Supreme Court's
analysis in O'Shea, and reasoned that consideration of the remedies available is necessary at the outset of the
litigation because "[i]t would certainly create an awkward moment if, at the end of protracted litigation, a compliance
problem arose which would force abstention on the same ground that existed prior to trial." Luckey v. Miller, 976 F.2d
673, 679 (11th Cir.1992). The court agrees.
The relief requested by plaintiffs in this case would necessarily interfere with their ongoing dependency court cases
and those of the putative class. The requested declaratory relief calls into question the validity of every decision made
in pending and future dependency court cases before the resolution of this litigation. Specifically, plaintiffs seek a
finding that the number of lawyers currently provided are insufficient to perform the enumerated duties that they are
required to perform under both state and federal law. Plaintiffs similarly seek a finding that they have not been granted
meaningful access to the courts or appropriate consideration of their matters due to judicial caseloads. While plaintiffs
contend that each individual plaintiff would still have to demonstrate prejudice in order to invalidate the decision
rendered in each pending case,[8] the court cannot overlook the practical impact of the proposed declaratory relief on
the 5,100 active dependency court cases; this court's order would substantiate a finding of a constitutional or statutory
violation in every one of those active cases. Even if not determinative in every instance, this finding would impact each
of the putative class member's cases. See Luckey, 976 F.2d at 679 ("[L]aying the groundwork for a future request for
more detailed relief which would violate the comity principles expressed in Younger and O'Shea is the precise exercise
forbidden under the abstention doctrine."); Gardner, 500 F.2d at 714 (noting that abstention was applicable to the
plaintiffs' challenges to operation of the Florida state public defender offices "to the extent the complaint alleged
present and continuing constitutional deprivations due to the representation appellants were receiving in pending state
appeals proceedings"); see also Kaufman v. Kaye, 466 F.3d 83, 86-87 (2d Cir.2006) (holding that requested
declaratory relief in challenged assignment procedures in New York court system interfered with ongoing
administration of the court system because the court could not resolve the issues raised without resolving the same
issues as to the subsequent remedy chosen by the state).
Further, the broad and ill-defined injunctive relief requested by plaintiffs would impact the conduct of the proceeding
themselves, not just the body charged with initiating the proceedings. See Joseph A., 275 F.3d at 1269. If the court
finds constitutional or statutory violations based upon the amount of time or resources spent on juvenile dependency
court cases, an injunction directed to remedying those violations would require the court to ensure that in each case
the child was receiving certain services or procedures that the court has declared constitutional. Enforcement could
1173 not simply end *1173 with a policy directive to the Judicial Council, the AOC, or the Sacramento Superior Court, but
would require monitoring of its administration.
Indeed, plaintiff contemplates such relief, as illustrated by their submission of a consent decree in a Northern District of
Georgia case, Kenny A. v. Perdue, 218 F.R.D. 277 (N.D.Ga.2003) which they contend demonstrates a
"straightforward, easily enforceable" remedy. (Pls.' Supplemental Opp'n, filed Nov. 22, 2009, at 4.) Specifically, the
proffered consent decree requires that defendants ensure that Child Advocate Attorneys have a maximum caseload
and that the County will hire a specified number of additional attorneys within certain time periods. (Ex. A. to Decl. of
Jonathan M. Cohen ("Consent Decree"), filed Nov. 20, 2009, at 3-4.) The decree also requires that defendants provide
documents and information to a "Compliance Agent" regarding the caseload and number of attorneys, training and
CLE records for those attorneys, performance reviews and evaluations for those attorneys, and complaints of
inadequate and ineffective legal representation. (Id. at 4-5.) The appointed "Compliance Agent" is then responsible for
undertaking an independent fact-finding review of the parties' obligations, issuing a "Compliance Report," and
reviewing or reporting any curative plans. (Id. at 6.) The Compliance Report must then be filed in federal court. (Id. at
7.) Pursuant to certain requirements, the parties could challenge non-compliance and seek enforcement of the decree
in federal court. (Id. at 8-9.)

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The court disagrees with plaintiffs' characterization that such a decree is straight-forward and easily enforceable. First,
the court has grave concerns about both the effectiveness and the enforceability of the relief accorded. In this case,
plaintiffs allege violations arising from excessive caseloads of both attorneys and judicial officers/judges and request
injunctive relief aimed at both of these problems. An order providing for the allocation of more attorneys and judges to
the dependency court system and maximum caseloads presumes that such measures would redress the problems of
inadequate representation as alleged in the complaint, which ignores other issues of administrative efficiencies,
resource management, and possible physical constraints that are implicated by plaintiffs' claims. However, assuming
arguendo, that plaintiffs could support this presumption through proof, the question remains how the court would
enforce such an order. Should the court order that court-appointed representation cannot be granted if attorney
caseloads exceed the mandated maximum? Should the court suspend dependency court proceedings until defendants
are able to hire adequately trained attorneys to represent children in these proceedings? Should the court order that
dependency court judicial officers/judges simply should decline to hear cases that would require them to exceed their
maximum caseload? If state courts refuse to comply with the court's maximum caseload requirements, should the
federal court impose sanctions on the state court judge or officials for contempt? Would the court hold the Chair of the
Judicial Council or the Presiding Judge of the Superior Court of Sacramento County in contempt for noncompliance
due to state budgetary limitations?[9] These questions necessarily implicate the importance of the state's interest in
1174 adjudicating these matters *1174 and the ability of the court to enforce its own orders without violating well-established
principles of federalism and comity. See Joseph A., 275 F.3d at 1267-72 (holding that litigation to enforce consent
decree raised Younger abstention issues); see also Laurie Q., 304 F.Supp.2d at 1204-05 (holding that in order to cure
the juvenile court's alleged failure to review case plans in a timely fashion, the court would be compelled "to either spur
the Juvenile court by injunction, or even take the matter completely out of its hands" and thus, engage in the type of
interference criticized by the Ninth Circuit in City of Tucson, 255 F.3d 1086).
Second, the proffered periodic reporting requirements, standing alone, "constitute a form of monitoring of the operation
of state court functions that is antipathetic to established principles of comity." O'Shea, 414 U.S. at 501, 94 S.Ct. 669.
The Supreme Court has explicitly disapproved of an injunction aimed at controlling or preventing the occurrence of
specific events in future state proceedings because it would require "the continuous supervision by the federal court
over the conduct [of defendants] in the course of future ... proceedings involving any members of the ... broadly
defined class." Id. While the reporting requirements may not impose an undue burden in their creation, the underlying
question is whether a federal court should order such reports at all. See Luckey, 976 F.2d at 678 n. 4; see also
Anthony v. Council, 316 F.3d 412, 421 (3d Cir.2003) (abstaining under Younger where federal relief would disrupt the
New Jersey court system and lead to federal monitoring). The principles underlying both O'Shea and Younger
persuade the court that it should not.
Further, the court finds plaintiffs' reliance on the reasoning of Kenny A. unpersuasive. See 218 F.R.D. 277. As an initial
matter, the facts considered by the Kenny A. court relating to interference with ongoing state proceeding are different
from the facts that must be considered by the court in this case. In Kenny A., nine foster children in the custody of the
Georgia Department of Human Resources filed a putative class action in state court against the Governor of Georgia,
the Georgia Department of Human Resources and its Commissioner, the counties' Department of Family and Children
Services and their Directors, and the counties. 218 F.R.D. at 283-84. Defendants removed the case to federal court,
where they asserted that the court should refrain from exercising jurisdiction pursuant to Younger. Id. at 284-85. The
court held that defendants waived their right to raise Younger abstention by removing the case to federal court;
accordingly, the court's cursory analysis of the applicability of Younger abstention is merely dicta. Id. at 285. However,
the court reasoned that the federal action would not interfere with the juvenile proceedings because the declaratory
and injunctive relief was not directed at the plaintiffs' review hearings, at Georgia's juvenile courts, juvenile court
judges, or juvenile court personnel. Id. at 286. Rather, the court emphasized that plaintiffs' alleged violations arose out
of the (1) excessive numbers of cases assigned to inadequately trained and poorly supervised case workers (not
lawyers); (2) failure to identify and develop a sufficient number of foster homes; (3) failure to identify adult relatives
who could care for plaintiffs; (4) failure to provide relevant information and support services to foster parents; (5) failure
to develop administrative controls; (6) failure to provide timely and appropriate permanency planning; (7) placement in
1175 dangerous, unsanitary, and inappropriate *1175 homes; (8) failure to provide appropriate mental health, medical, and

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educational services; and (9) separation of teenage mothers in foster care from their own children. Id. The court held
that remedying these failures would not interfere in any way with ongoing juvenile court proceedings. Id.
Conversely, in this case, plaintiffs' claims are directed at the fairness and efficacy of the dependency courts and
counsel arising out of excessive caseloads. As such, unlike the court's characterization of the claims in Kenny A.,
plaintiffs' requested declaratory and injunctive relief is directed at the plaintiffs' review hearings, Sacramento County's
juvenile courts, juvenile court judges, and juvenile court personnel. See Joseph A., 275 F.3d at 1272 (noting that
injunctive relief directed at attorneys, rather than at the court directly, does not preclude Younger's application because
the same underlying principles apply to officers of the court).
Moreover, the court notes that the Kenny A. court's analysis failed to address issues that the Supreme Court and other
Circuit courts have found important to the applicability of the first element of Younger abstention. Specifically, while the
Kenny A. court noted that plaintiffs challenged excessive caseloads in its analysis of whether there was an adequate
opportunity to raise federal claims, the court notably omitted this allegation from its analysis of potential interference
with state court proceedings. See id. at 286-89. The court's focus on non-lawyers and non-judicial actors in the
determination of whether the federal court would interfere with on-going state proceedings avoided a pivotal issue of
whether an analysis of the constitutionality and lawfulness of allegedly excessive caseloads would interfere with
ongoing state court proceedings. See Luckey, 976 F.2d at 679.
In sum, the court concludes that the declaratory and injunctive relief requested by plaintiffs severely interferes with the
operation of state court proceedings. Any declaratory relief necessarily implicates the validity of pending dependency
court proceedings, even if such findings are not wholly determinative. Further, the requested injunctive relief would be
impossible to enforce without violation of established principles of federalism and comity. Accordingly, the first element
of Younger abstention is present in this case.

b. Important State Interests
The parties do not dispute that this litigation implicates important state interests in the care, placement, and welfare of
children in the Sacramento County dependency court system. Indeed, the law is clear that "[f]amily relations are a
traditional area of state concern." Moore, 442 U.S. at 435, 99 S.Ct. 2371. Further, "[p]roceedings necessary for the
vindication of important state policies or for the functioning of the state judicial system ... evidence the state's
substantial interest in the litigation." Middlesex County Ethics Comm., 457 U.S. at 432, 102 S.Ct. 2515. Accordingly,
the second element of Younger abstention is present in this case.

c. Adequate Opportunity to Present Federal Claims
Plaintiffs contend that there is no adequate opportunity to present their federal claims in the pending state court
dependency proceedings. Specifically, plaintiffs contend that they "would be unable to get a fair hearing in state court
1176 because the [d]efendants employ the state court *1176 judges." (Pls.' Opp'n at 21). Plaintiffs also contend that, as a
practical matter, they cannot press their constitutional claims in dependency court because the system is
overburdened.
"Minimal respect for state processes, of course, precludes any presumption that the state court will not safeguard
federal constitutional rights." Middlesex County Ethics Comm., 457 U.S. at 431, 102 S.Ct. 2515. Rather, a federal court
"should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the
contrary." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). As such, a plaintiff
opposing abstention bears the burden of establishing that the pending state proceedings do not provide an adequate
remedy for their federal claims. 31 Foster Children, 329 F.3d at 1279.
"Where vital state interests are involved, a federal court should abstain `unless state law clearly bars the interposition
of the constitutional claims.'" Middlesex County Ethics Comm., 457 U.S. at 423, 102 S.Ct. 2515 (quoting Moore, 442

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U.S. at 423, 99 S.Ct. 2371); Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 713 (9th Cir.1995) ("Judicial
review is inadequate only when state procedural law bars presentation of the federal claims."). "The pertinent inquiry is
whether the state proceedings afford an adequate opportunity to raise the constitutional claims." Id. (internal
quotations omitted). A federal court "should not exert jurisdiction if the plaintiffs `had an opportunity to present their
federal claims in the state proceedings.'" Id. at 425, 102 S.Ct. 2515 (quoting Juidice v. Vail, 430 U.S. 327, 337, 97
S.Ct. 1211, 51 L.Ed.2d 376 (1977)) (emphasis in original). The fact that judicial review is discretionary or that the
clams may be raised only in state court review of administrative proceedings does not amount to a procedural bar.
Hirsh, 67 F.3d at 713 (discretionary judicial review of the Bar Court's decision provided adequate opportunity for
judicial review); Beltran, 871 F.2d at 783 (state appellate court review of the Agricultural Labor Relations Board's
decision provided adequate opportunity to raise constitutional claim).
California courts have explicitly held that juvenile courts can hear constitutional claims relating to the deficient
representation of counsel arising out of the unavailability of adequate time and resources to represent a minor. In re
Edward S., 173 Cal.App.4th 387, 407-10, 92 Cal.Rptr.3d 725 (1st Dist.2009); see In re Darlice C., 105 Cal.App.4th
459, 463, 129 Cal.Rptr.2d 472 (3d Dist.2003) ("Where, as here, the juvenile court has ordered parental rights
terminated, a parent has the right to seek review of claims of incompetent assistance of counsel."); Laurie Q., 304
F.Supp.2d at 1206 ("California law has conferred upon the Juvenile Court the sweeping power to address nearly any
type of deficiency in the care of a minor and order nearly any type of relief."). Indeed, at least one California court has
noted, that it is the "paramount responsibility of a judicial officer to assure the provision of a fair trial" and that a
continuance of pending proceedings or other adequate relief is justified where there is "an adequate showing that an
[attorney's] excessive caseload and the limited resources [available to him] made it impossible ... to adequately
represent" his client. Id.; see also 31 Foster Children, 329 F.3d at 1279 (holding that available remedies were
1177 adequate because the juvenile court can act to protect children within its jurisdiction); J.B., 186 F.3d at *1177 1292-93
(holding that because the juvenile court was a court of general jurisdiction under state law, the plaintiffs had not
provided "unambiguous authority" that state courts could not provide an adequate remedy); Joseph A., 275 F.3d at
1274 (holding that dismissal of a federal claim in dicta from a state court opinion was insufficient to overcome the
presumption that state relief was available).
In this case, plaintiffs have failed to overcome the presumption that their pending state court proceedings provide an
adequate opportunity for judicial review of their federal claims. Rather, California law explicitly provides recourse
through the state court system for the federal claims raised in this litigation. At oral argument, plaintiffs conceded that
the state dependency courts can entertain the type of federal claims brought in this litigation. (Tr. of Nov. 6, 2009 Hr'g
("Tr.") at 43.) Further, under California law, one of the paramount responsibilities of state judicial officers is the
assurance that parties are provided with a fair trial. Therefore, plaintiffs have an alternative adequate opportunity to
press their federal claims.
Plaintiff's reliance on the D.C. Circuit's decision in LaShawn A. v. Kelly, is misplaced. 990 F.2d 1319 (D.C.Cir.1993.) In
LaShawn A., the plaintiffs brought a child welfare class action against the defendants based upon alleged
constitutional and statutory violations arising from "ineptness and indifference, inordinate caseloads, and insufficient
funds." Id. at 1320. In rejecting the applicability of Younger abstention, the court noted that the District of Columbia
Family Division had "explicitly rejected the use of review hearings to adjudge claims requesting broad-based injunctive
relief based on federal law." Id. at 1323. Accordingly, there was no alternative avenue for relief for the plaintiffs.
However, as set forth above, in this case it is undisputed that state courts can entertain the type of federal claims
brought in this litigation. As such, there is no procedural bar as was before the LaShawn A. court.[10]
Accordingly, the third element of Younger abstention is met in this case.

d. Exceptions to Abstention
Finally, plaintiffs contend that abstention is unwarranted because the judicial state officer or other state judge
1178 responsible for deciding their claims "would be placed in the position of having to rule *1178 against either the

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Honorable Presiding Judge in their own County or against the remaining [d]efendants ... who establish policy
governing their jobs. (Pls.' Opp'n at 28.)
"Although a federal court is normally required to abstain if the three prongs of the Younger test are satisfied, abstention
is inappropriate in the `extraordinary circumstance' that the state tribunal is incompetent by reason of bias." Hirsh, 67
F.3d at 713 (citing Gibson v. Berryhill, 411 U.S. 564, 577-79, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973)). "Bias exists were
a court has prejudged, or reasonably appears to have prejudged, an issue." Kenneally v. Lungren, 967 F.2d 329, 333
(9th Cir.1992).
The party alleging bias "must overcome a presumption of honesty and integrity in those serving as adjudicators."
Hirsh, 67 F.3d at 714. (internal quotations and citations omitted). Where there is an absence of any personal or
financial stake in the outcome sufficient to create a conflict of interest and where there is a lack of personal animosity
towards the parties in the proceedings, the presumption is not overcome. Vanelli v. Reynolds Sch. Dist. No. 7, 667
F.2d 773, 779-80 n. 10 (9th Cir.1982). The Supreme Court has held that a plaintiff did not sufficiently demonstrate bias
when a state medical board adjudicated the merits of a disciplinary action in which the board itself investigated and
filed charges. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). The Court has also concluded
that a state board's prior involvement in a labor dispute with striking teachers did not prevent it from deciding whether
those teachers should be dismissed as a result of that unlawful strike. Hortonville Joint Sch. Dist. No. 1 v. Hortonville
Educ. Ass'n, 426 U.S. 482, 497, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); see also Vanelli, 667 F.2d at 779-80 (holding that
a school board reviewing its own prior decision was not impermissibly biased). Similarly the Ninth Circuit has held that
judges are not incompetent to review findings of judicial officers whom they participate in appointing. Hirsh, 67 F.3d at
714. The Ninth Circuit has also held that fines imposed by a disciplinary board, which are paid to the same entity that
pays the salaries of the disciplinary board, is insufficient to establish bias. Id.
Plaintiffs' conclusory and astonishing assertions that all state court judges are biased in this matter is unsupported by
law or facts. Plaintiffs have not submitted any allegations or argument that all state court judges and judicial officers
have a personal or financial stake in the litigation. Nor have plaintiffs proffered any allegations or arguments relating to
any judge's personal animosity against them. While plaintiffs contend, without any legal authority for support, that
defendants control policy decisions that may impact state judges, such a broad and ambiguous contention does not
come close to surpassing the factual circumstances in which the Ninth Circuit has held the presumption of bias was
not overcome. As such, plaintiffs' conclusory assertions are insufficient to demonstrate extraordinary circumstances.
Therefore, because plaintiffs' claims would interfere with ongoing state dependency court proceedings that implicate
important state interests, plaintiffs have an adequate opportunity to pursue their federal claims in those proceedings,
1179 and they have failed to overcome the presumption of honesty and integrity in those serving as *1179 adjudicators, the
court must abstain from adjudicating these claims pursuant to Younger v. Harris.

CONCLUSION
In conclusion, the court again acknowledges that plaintiffs' claims present a troubling depiction of the state of
Sacramento County's dependency court system. The facts alleged relative to the named minor plaintiffs demonstrate a
serious lack of responsiveness by the state's current system to the needs of children. However, to remedy these
wrongs, this court must reallocate state financial resources, reorder state legislative priorities, and revise state judicial
policies. This proposed federal judicial takeover of these functions of state government not only strikes at the core
principles of federalism and comity, but assumes an institutional competence that a federal district court simply does
not possess.
Therefore, for the foregoing reasons, defendants' motion to dismiss is GRANTED.
IT IS SO ORDERED.
[1] The Honorable Ronald M. George is the Chief Justice of the California Supreme Court.

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[2] Defendants also contend that plaintiffs lack standing to bring their claims. Defendants' arguments relating to abstention and
standing relate to whether plaintiffs' claims are properly before the court and within the confines of the judicial authority conferred by
Article III. Indeed, assuming that plaintiffs have sufficiently alleged injury in fact and causation, the court's conclusions relating to its
ability to redress such injury, as set forth infra, "obviously shade into those determining whether the complaint" sufficiently presents a
real case or controversy for purposes of standing. O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
[3] While a majority of decisions have applied equitable abstention in the context of cases involving injunctions in criminal cases, the
Court has noted that the doctrine "has not been limited to that situation or indeed to a criminal proceeding itself." Rizzo v. Goode, 423
U.S. 362, 380, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Rather, the same principles apply to civil proceedings and to cases where
injunctive relief is sought against those in charge of an executive branch of an agency of state or local governments. Id.
The court also notes that while there is significant crossover between the fundamental principles and factors considered in the
doctrines of equitable abstention and Younger abstention, the Supreme Court and Circuit decisions addressing equitable abstention
reflect differences that justify separate treatment of these two doctrines.
[4] Indeed, plaintiffs argue that "[d]efendants spend hundreds of millions for other priorities even as they assert poverty when it comes
to addressing the caseload-caused anguish their own meticulous study certifies and decries." (Pls.'s Supp. Brief [Docket # 35], filed
Nov. 20, 2009.) At oral argument, plaintiff's counsel asserted the AOC spent approximately a billion and a half dollars on a new
management system and has contracted to build new courthouses, implying that money to fund relief in this case could be
reallocated from those or similar projects. (Tr. at 29.)
[5] Moreover, unless the Superior Court of California were awarded more judges overall, this court's order would necessarily implicate
state policy decisions regarding how many judges to appoint in particular departments.
[6] Further, the court notes, as set forth, infra, in the court's discussion of Younger abstention, plaintiffs have an alternative, available
avenue of relief.
[7] In Moore, the Supreme Court held that dependency proceedings do not, without more, constitute such an extraordinary
circumstance. 442 U.S. at 434, 99 S.Ct. 2371 ("Unless we were to hold that every attachment issued to protect a child creates great,
immediate, and irreparable harm warranting federal-court intervention, we are hard pressed to conclude that ... federal intervention
was warranted.").
[8] The court notes that plaintiffs' contention is incongruous with their allegations and arguments relating to injury. The named minor
plaintiffs allege that the excessive judicial and attorney caseloads prevented them from receiving services or process. A finding in
favor of the named plaintiffs would directly affect the proceedings of those plaintiffs.
[9]See Luckey, 976 F.2d at 679 ("Avoidance of this unseemly conflict between state and federal judges is one reason for O'Shea and
Younger.")
[10] Plaintiffs' reliance on Kenny A. is similarly misplaced as the Northern District of Georgia explicitly found that the juvenile court
lacked the power to grant the relief requested by the plaintiffs. 218 F.R.D. at 287. Further, the Kenny A. court's alternative rationale,
that the plaintiffs "are dependent upon an allegedly overburdened and inadequate system of legal representation, which prevents
them from raising their claims in the juvenile court," is contrary to Ninth Circuit precedent, which, as set forth above, provides that
judicial review is inadequate "only where there is a procedural bar to the presentation of federal claims." See Hirsh, 67 F.3d at 713.
The court is not dispassionate regarding the obstacles facing plaintiffs. However, their arguments regarding the practical impediments
to judicial review run counter to explicit Supreme Court and Ninth Circuit authority on this issue. See Pennzoil, 481 U.S. at 15, 107
S.Ct. 1519 ("[W]hen a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court
should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.");
Hirsh, 67 F.3d at 713. Neither the Supreme Court nor the Ninth Circuit has held that practical impediments may amount to a
procedural bar for purposes of Younger abstention; nor did the Kenny A. court cite any legal authority for its novel rationale. 218
F.R.D. at 287.

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657 F.3d 902 (2011)

E.T.; K.R.; C.B.; G.S.; Frank Dougherty, on Behalf of E.T., K.R., C.B. and G.S., PlaintiffsAppellants,
v.
Tani CANTIL-SAKAUYE, Chair of the Judicial Council of California, in her official capacity;
William C. Vickrey, Administrative Director of the Administrative Office of the Court of the
Judicial Council, in his official capacity; Steven W. White, Presiding Judge of the Superior
Court of the County of Sacramento, in his official capacity, Defendants-Appellees. *903

903

No. 10-15248.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 2011.
Filed September 13, 2011.
Edward Howard (argued), Children's Advocacy Institute, University of San Diego School of Law, San Diego, CA; Peter
E. Perkowski, Winston & Strawn, LLP, San Francisco, CA, for the plaintiffs-appellants.
Robert A. Naeve, Jones Day, Irvine, CA, for the defendants-appellees.
Before: SIDNEY R. THOMAS and JOHNNIE B. RAWLINSON, Circuit Judges, and CORMAC J. CARNEY, District
Judge.[*]

OPINION
PER CURIAM:
Plaintiff foster children appeal the dismissal of their class action lawsuit under 42 U.S.C. § 1983, in which they allege
that the caseloads of the Sacramento County Dependency Court and court-appointed attorneys are so excessive as to
violate federal and state constitutional and statutory provisions. The district court abstained from adjudicating Plaintiffs'
claims. Based on O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), we affirm. See Kaufman v.
Kaye, 466 F.3d 83, 84 (2d Cir.2006).

I
A
Plaintiffs filed this action on behalf of themselves and a proposed class of roughly 5,100 foster children in Sacramento
904

*904 County.[1] They allege that "crushing and unlawful caseloads" frustrate the ability of Dependency Courts to fairly
and adequately hear their cases and of court-appointed attorneys to provide them effective assistance of counsel—all
to the childrens' "enduring harm." Their suit "seeks a Dependency Court for Sacramento's abused and neglected
children that comports with basic Due Process and the effective, adequate, and competent assistance of counsel for
the children of Sacramento County in dependency proceedings."
In their complaint, Plaintiffs assert constitutional and statutory claims under 42 U.S.C. § 1983, as well as pendent state
law claims.[2] They seek relief in the form of (1) a declaratory judgment that Defendants have violated, continue to
violate, and/or will violate Plaintiffs' rights; (2) injunctive relief, restraining future violations of those rights; and (3) an

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order "mandating that Defendants provide the additional resources required to comply with the Judicial Council of
California and the National Association of Counsel for Children's recommended caseloads for each court-appointed
attorney."
Named plaintiffs E.T., K.R., C.B., and G.S. reside in the County of Sacramento and presently are in foster care or are
wards of the court. Together, they allege numerous shortcomings of court-appointed counsel, including the failure to
conduct meaningful interviews or regular meetings, investigate their cases, and foster contact with social workers and
other professionals.

905

Each named Defendant plays a part in administering the County's foster care courts. The Honorable Tani CantilSakauye, Chief Justice of California, is Chair of the Judicial Council of California. The Judicial Council oversees the
statewide administration of justice in the state's courts. As Chair, the Chief Justice directs the Council's work, including
its allocation of the judicial branch budget; promulgation of rules of court administration and procedure; and setting of
priorities for the system's continual improvement. William C. Vickrey is Administrative Director of the Administrative
Office of the Courts ("AOC"), the staff agency of the Council responsible for a variety of programs and services to
improve access to a fair and impartial judicial system. The AOC's initiatives include Dependency Representation,
Administration, Funding, and Training ("DRAFT"), a program to provide court funding to participating California
counties. DRAFT funds pay for childrens' court-appointed counsel in Sacramento County Dependency Court. Finally,
the Honorable Steven W. White is Presiding Judge of the Superior Court of the County of Sacramento. In that
capacity, Judge White's responsibilities include allocating *905 resources within the court and assigning judges to
departments, such as the county's Dependency Court.

B
On Defendants' motion, the district court dismissed Plaintiffs' complaint on abstention grounds. E.T. v. George, 681
F.Supp.2d 1151 (E.D.Cal.2010). The court concluded that both O'Shea, 414 U.S. at 501-02, 94 S.Ct. 669, and
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), require a federal court to abstain from
adjudicating Plaintiffs' claims. E.T., 681 F.Supp.2d at 1167-68, 1178-79. Plaintiffs timely appealed the district court's
judgment only insofar as it dismissed their attorney caseload claims and related request for declaratory relief. We have
[3]

jurisdiction under 28 U.S.C. § 1291.

II
Federal courts may not entertain actions that seek to impose "an ongoing federal audit of state . . . proceedings."
O'Shea, 414 U.S. at 500, 94 S.Ct. 669; see also id. (warning against remedies "which would indirectly accomplish the
kind of interference that Younger . . . and related cases sought to prevent" (emphasis added)); Rizzo v. Goode, 423
U.S. 362, 379-80, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Kaufman v. Kaye, 466 F.3d at 86; 31 Foster Children v. Bush,
329 F.3d 1255, 1276 (11th Cir.2003); Joseph A. v. Ingram, 275 F.3d 1253, 1271 (10th Cir.2002); Lucien v. Johnson,
61 F.3d 573, 576 (7th Cir.1995); Parker v. Turner, 626 F.2d 1, 7 (6th Cir. 1980); Gardner v. Luckey, 500 F.2d 712, 715
(5th Cir.1974). "We should be very reluctant to grant relief that would entail heavy federal interference in such sensitive
state activities as administration of the judicial system." Los Angeles Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 703 (9th Cir.
1992) (citing O'Shea, 414 U.S. 488, 94 S.Ct. 669; Rizzo, 423 U.S. at 379, 96 S.Ct. 598); cf. Horne v. Flores, ___ U.S.
___, 129 S.Ct. 2579, 2593, 174 L.Ed.2d 406 (2009) (noting "sensitive federalism concerns" raised by "institutional
reform injunctions" and federal court decrees effectively "dictating state or local budget priorities").
Heeding the teachings of O'Shea and cases since, the district court properly concluded that "[P]laintiffs' challenges to
the juvenile dependency court system necessarily require the court to intrude upon the state's administration of its
government, and more specifically, its court system." E.T., 681 F.Supp.2d at 1164. Speaking to the Plaintiffs' attorney
caseload claims, the court reasoned that

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in order to declare the current attorney caseloads unconstitutional or unlawful, the court would
necessarily have to consider through a generalized inquiry how many cases are constitutionally and/or
statutorily permissible, whether some types of cases require more investigation or preparation, which
types of those cases deserve more resources, and how much time or attention is constitutionally and/or
statutorily permissible.
Id. at 1165.

906

In asking us to reverse the district court's judgment, Plaintiffs rely on our decision in Los Angeles Cnty. Bar Ass'n.
There, a county bar association brought a facial challenge to the constitutionality of a *906 state statute prescribing the
number of judges on the county's superior court. 979 F.2d at 699. The association sought a declaration that the statute
violated federal and state constitutional guarantees—it argued that a shortage of judges caused delays in civil
litigation, depriving litigants of access to courts, and that the statute denied local litigants equal protection because it
forced them to suffer longer delays than litigants in neighboring counties. Id. at 699-700. We rejected the defendants'
suggestion that a federal court should abstain under the principles of O'Shea and Rizzo. Id. at 701-04. Here, because
Plaintiffs seek only declaratory relief on appeal, they believe their challenge to average attorney caseloads resembles
the average court delays claim at issue in Los Angeles County Bar Ass'n. We disagree.
Los Angeles County Bar Ass'n is distinguishable from the case at bar. It involved average court delays and the
"speedy civil litigation right," id. at 703, which the Plaintiffs allege would be solved by a simple increase in the number
of judges. This case involves average attorney caseloads and the right to counsel, with remedies potentially involving
a substantial interference with the operation of the program, including allocation of the judicial branch budget,
establishment of program priorities, and court administration. Because the question is one of adequacy of attorney
representation, potential remediation might involve examination of the administration of substantial number of
individual cases. Thus, we conclude that the declaratory relief sought by Plaintiffs so intrudes in the administration of
the Sacramento County Dependency Court as to require abstention under O'Shea. See Samuels v. Mackell, 401 U.S.
66, 72-73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (noting that claims for declaratory relief can be just as intrusive as
claims for injunctive relief); Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir.2004) (en banc) (same); see also O'Shea,
414 U.S. at 500, 94 S.Ct. 669; Parker, 626 F.2d at 7 ("When the state agency in question is a state court . . . the
equitable restraint considerations appear to be nearly absolute.").
We decline Plaintiffs' invitation to consider in isolation their (now-narrowed) request for relief, as though reaching the
merits of their declaratory judgment claims would end the matter. For "even the limited decree[]" sought here "would
inevitably set up the precise basis for future intervention condemned in O'Shea." Luckey v. Miller, 976 F.2d 673, 679
(11th Cir.1992) (per curiam) (emphasis added). In other words, were we to declare the current Dependency Court
attorney caseloads unconstitutional or unlawful, the Defendants' compliance with that remedy and its effect in
individual cases could be subject to further challenges in federal district court. See Samuels, 401 U.S. at 72, 91 S.Ct.
764; Kaufman, 466 F.3d at 87. "[L]aying the groundwork for a future request for more detailed relief which would
violate the comity principles expressed in Younger and O'Shea is the precise exercise forbidden under the abstention
doctrine." Luckey, 976 F.2d at 679; O'Shea, 414 U.S. at 500-501, 94 S.Ct. 669; accord Kaufman, 466 F.3d at 87
(noting that later challenges to compliance with the federal court remedy requested "would inevitably lead to precisely
the kind of `piecemeal interruptions of . . . state proceedings' condemned in O'Shea").

III
907

We conclude that the district court properly abstained from consideration of the claims Plaintiffs raise here, and we
therefore *907 affirm the dismissal of their complaint.
AFFIRMED.
[*] The Honorable Cormac J. Carney, District Judge for the U.S. District Court for Central California, Santa Ana, sitting by designation.

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[1] For purposes of a motion to dismiss, we take the factual allegations in Plaintiffs' complaint as true. Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir.2010).
[2] Specifically, Plaintiffs assert federal claims under § 1983 arising out of alleged (1) procedural and substantive due process
violations from excessive attorney caseloads, and procedural due process violations from excessive judicial caseloads; (2)
deprivation of rights under the Federal Child Welfare Act, 42 U.S.C. § 671(a)(22); and (3) deprivation of rights under the Child Abuse
Prevention and Treatment and Adoption Reform Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii). Plaintiffs also assert state law claims arising
out of alleged (1) violations of the inalienable right to pursue and obtain safety set forth in Article I, § 1 of the California Constitution
for failure to provide fair and adequate tribunals and effective legal counsel; (2) violation of due process as guaranteed in Article I, § 7
of the California Constitution for failure to provide adequate and effective legal representation in dependency proceedings; (3)
violation of Welfare and Institutions Code § 317(c); and (4) violation of Welfare and Institutions Code § 317.5(b).
[3] The parties disagree about the standard of review applicable to the district court's decision to equitably abstain under O'Shea and
its progeny. We need not resolve the dispute today, because whether we review the district court's ruling de novo or for an abuse of
discretion, our conclusion remains the same. See, e.g., United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996) ("We need not
decide what the appropriate standard of review should be in the instant appeal . . . because we would reach the same result
regardless of which one were applied.").

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682 F.3d 1121 (2011)

E.T.; K.R.; C.B.; G.S.; Frank Dougherty, on Behalf of E.T., K.R., C.B. and G.S., PlaintiffsAppellants,
v.
Tani CANTIL-SAKAUYE, Chair of the Judicial Council of California, in her official capacity;
William C. Vickrey, Administrative Director of the Administrative Office of the Court of the
Judicial Council, in his official capacity; Steven W. White, Presiding Judge of the Superior
Court of the County of Sacramento, in his official capacity, Defendants-Appellees.
No. 10-15248.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 2011.
Filed September 13, 2011.
Amended March 12, 2012.
Edward Howard (argued), Children's Advocacy Institute, University of San Diego School of Law, San Diego, CA; Peter
E. Perkowski, Winston & Strawn, LLP, San Francisco, CA, for the plaintiffs-appellants.
Robert A. Naeve, Jones Day, Irvine, CA, for the defendants-appellees.
1122 *1122 Before: SIDNEY R. THOMAS and JOHNNIE B. RAWLINSON, Circuit Judges, and CORMAC J. CARNEY,
District Judge.[*]

ORDER
The panel has decided to amend the opinion filed September 13, 2011. The opinion is withdrawn and a substituted
opinion is filed concurrently with this order.
With the filing of the amended opinion, the panel has voted to deny the petition for rehearing and to reject the petition
for rehearing en banc.
The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote
on the petition for rehearing en banc. Fed. R.App. P. 35(b).
The petition for rehearing is denied and the petition for rehearing en banc is rejected. No further petitions for rehearing
will be entertained.

OPINION
PER CURIAM:
Plaintiff foster children appeal the dismissal of their class action lawsuit under 42 U.S.C. § 1983, in which they allege
that the caseloads of the Sacramento County Dependency Court and court-appointed attorneys are so excessive as to
violate federal and state constitutional and statutory provisions. The district court abstained from adjudicating Plaintiffs'
claims. Based on O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), we affirm. See Kaufman v.
Kaye, 466 F.3d 83, 84 (2d Cir.2006).

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I
A
Plaintiffs filed this action on behalf of themselves and a proposed class of roughly 5,100 foster children in Sacramento
County.[1] They allege that "crushing and unlawful caseloads" frustrate the ability of Dependency Courts to fairly and
adequately hear their cases and of court-appointed attorneys to provide them effective assistance of counsel — all to
the childrens' "enduring harm." Their suit "seeks a Dependency Court for Sacramento's abused and neglected children
that comports with basic Due Process and the effective, adequate, and competent assistance of counsel for the
children of Sacramento County in dependency proceedings."
In their complaint, Plaintiffs assert constitutional and statutory claims under 42 U.S.C. § 1983, as well as pendent state
1123 law claims.[2] They seek relief in the form of (1) *1123 a declaratory judgment that Defendants have violated, continue
to violate, and/or will violate Plaintiffs' rights; (2) injunctive relief, restraining future violations of those rights; and (3) an
order "mandating that Defendants provide the additional resources required to comply with the Judicial Council of
California and the National Association of Counsel for Children's recommended caseloads for each court-appointed
attorney."
Named plaintiffs E.T., K.R., C.B., and G.S. reside in the County of Sacramento and presently are in foster care or are
wards of the court. Together, they allege numerous shortcomings of court-appointed counsel, including the failure to
conduct meaningful interviews or regular meetings, investigate their cases, and foster contact with social workers and
other professionals.
Each named Defendant plays a part in administering the County's foster care courts. The Honorable Tani CantilSakauye, Chief Justice of California, is Chair of the Judicial Council of California. The Judicial Council oversees the
statewide administration of justice in the state's courts. As Chair, the Chief Justice directs the Council's work, including
its allocation of the judicial branch budget; promulgation of rules of court administration and procedure; and setting of
priorities for the system's continual improvement. William C. Vickrey is Administrative Director of the Administrative
Office of the Courts ("AOC"), the staff agency of the Council responsible for a variety of programs and services to
improve access to a fair and impartial judicial system. The AOC's initiatives include Dependency Representation,
Administration, Funding, and Training ("DRAFT"), a program to provide court funding to participating California
counties. DRAFT funds pay for childrens' court-appointed counsel in Sacramento County Dependency Court. Finally,
the Honorable Steven W. White is Presiding Judge of the Superior Court of the County of Sacramento. In that
capacity, Judge White's responsibilities include allocating resources within the court and assigning judges to
departments, such as the county's Dependency Court.

B
On Defendants' motion, the district court dismissed Plaintiffs' complaint on abstention grounds. E.T. v. George, 681
F.Supp.2d 1151 (E.D.Cal.2010). The court concluded that both O'Shea, 414 U.S. at 501-02, 94 S.Ct. 669, and
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), require a federal court to abstain from
adjudicating Plaintiffs' claims. E.T., 681 F.Supp.2d at 1167-68, 1178-79. Plaintiffs timely appealed the district court's
judgment only insofar as it dismissed their attorney caseload claims and related request for declaratory relief. We have
jurisdiction under 28 U.S.C. § 1291.[3]

II
Federal courts may not entertain actions that seek to impose "an ongoing federal audit of state ... proceedings."
O'Shea, 414 U.S. at 500, 94 S.Ct. 669; see also id. (warning against remedies "which would indirectly accomplish the

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1124 kind of interference that Younger ... and related cases sought to prevent" (emphasis added)); *1124 Rizzo v. Goode,
423 U.S. 362, 379-80, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Kaufman v. Kaye, 466 F.3d at 86; 31 Foster Children v.
Bush, 329 F.3d 1255, 1276 (11th Cir.2003); Joseph A. v. Ingram, 275 F.3d 1253, 1271 (10th Cir.2002); Lucien v.
Johnson, 61 F.3d 573, 576 (7th Cir.1995); Parker v. Turner, 626 F.2d 1, 7 (6th Cir. 1980); Gardner v. Luckey, 500 F.2d
712, 715 (5th Cir.1974). "We should be very reluctant to grant relief that would entail heavy federal interference in such
sensitive state activities as administration of the judicial system." Los Angeles Cnty. Bar Ass'n v. Eu, 979 F.2d 697,
703 (9th Cir. 1992) (citing O'Shea, 414 U.S. 488, 94 S.Ct. 669; Rizzo, 423 U.S. at 379, 96 S.Ct. 598); cf. Horne v.
Flores, 557 U.S. 433, 129 S.Ct. 2579, 2593, 174 L.Ed.2d 406 (2009) (noting "sensitive federalism concerns" raised by
"institutional reform injunctions" and federal court decrees effectively "dictating state or local budget priorities").
Heeding the teachings of O'Shea and cases since, the district court properly concluded that "[P]laintiffs' challenges to
the juvenile dependency court system necessarily require the court to intrude upon the state's administration of its
government, and more specifically, its court system." E.T., 681 F.Supp.2d at 1164. Speaking to the Plaintiffs' attorney
caseload claims, the court reasoned that
in order to declare the current attorney caseloads unconstitutional or unlawful, the court would
necessarily have to consider through a generalized inquiry how many cases are constitutionally and/or
statutorily permissible, whether some types of cases require more investigation or preparation, which
types of those cases deserve more resources, and how much time or attention is constitutionally and/or
statutorily permissible.
Id. at 1165.
In asking us to reverse the district court's judgment, Plaintiffs rely on our decision in Los Angeles Cnty. Bar Ass'n.
There, a county bar association brought a facial challenge to the constitutionality of a state statute prescribing the
number of judges on the county's superior court. 979 F.2d at 699. The association sought a declaration that the statute
violated federal and state constitutional guarantees — it argued that a shortage of judges caused delays in civil
litigation, depriving litigants of access to courts, and that the statute denied local litigants equal protection because it
forced them to suffer longer delays than litigants in neighboring counties. Id. at 699-700. We rejected the defendants'
suggestion that a federal court should abstain under the principles of O'Shea and Rizzo. Id. at 701-04. Here, because
Plaintiffs seek only declaratory relief on appeal, they believe their challenge to average attorney caseloads resembles
the average court delays claim at issue in Los Angeles County Bar Ass'n. We disagree.
Los Angeles County Bar Ass'n is distinguishable from the case at bar. It involved average court delays and the
`speedy civil litigation right,' id. at 703, which the Plaintiffs allege would be solved by a simple increase in the number
of judges. This case involves average attorney caseloads and the right to counsel. Because the question is one of
adequacy of representation, potential remediation might involve examination of the administration of a substantial
number of individual cases. Thus, we conclude that the declaratory relief sought by Plaintiffs would amount to an
ongoing federal audit of Sacramento County Dependency Court proceedings, requiring abstention under O'Shea. See
Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (noting that claims for declaratory relief
can be just as intrusive as claims for injunctive relief); Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir.2004) (en
1125 banc) (same); see also O'Shea, 414 U.S. at 500, *1125 94 S.Ct. 669; Parker, 626 F.2d at 7 ("When the state agency in
question is a state court ... the equitable restraint considerations appear to be nearly absolute.").
We decline Plaintiffs' invitation to consider in isolation their (now-narrowed) request for relief, as though reaching the
merits of their declaratory judgment claims would end the matter. For "even the limited decree[]" sought here "would
inevitably set up the precise basis for future intervention condemned in O'Shea." Luckey v. Miller, 976 F.2d 673, 679
(11th Cir.1992) (per curiam) (emphasis added). In other words, were we to declare the current Dependency Court
attorney caseloads unconstitutional or unlawful, the Defendants' compliance with that remedy and its effect in
individual cases could be subject to further challenges in federal district court. See Samuels, 401 U.S. at 72, 91 S.Ct.
764; Kaufman, 466 F.3d at 87. "[L]aying the groundwork for a future request for more detailed relief which would
violate the comity principles expressed in Younger and O'Shea is the precise exercise forbidden under the abstention

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doctrine." Luckey, 976 F.2d at 679; O'Shea, 414 U.S. at 500-501, 94 S.Ct. 669; accord Kaufman, 466 F.3d at 87
(noting that later challenges to compliance with the federal court remedy requested "would inevitably lead to precisely
the kind of `piecemeal interruptions of ... state proceedings' condemned in O'Shea").

III
We conclude that the district court properly abstained from consideration of the claims Plaintiffs raise here, and we
therefore affirm the dismissal of their complaint.
AFFIRMED.
[*] The Honorable Cormac J. Carney, District Judge for the U.S. District Court for Central California, Santa Ana, sitting by designation.
[1] For purposes of a motion to dismiss, we take the factual allegations in Plaintiffs' complaint as true. Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir.2010).
[2] Specifically, Plaintiffs assert federal claims under § 1983 arising out of alleged (1) procedural and substantive due process
violations from excessive attorney caseloads, and procedural due process violations from excessive judicial caseloads; (2)
deprivation of rights under the Federal Child Welfare Act, 42 U.S.C. § 671(a)(22); and (3) deprivation of rights under the Child Abuse
Prevention and Treatment and Adoption Reform Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii). Plaintiffs also assert state law claims arising
out of alleged (1) violations of the inalienable right to pursue and obtain safety set forth in Article I, § 1 of the California Constitution
for failure to provide fair and adequate tribunals and effective legal counsel; (2) violation of due process as guaranteed in Article I, § 7
of the California Constitution for failure to provide adequate and effective legal representation in dependency proceedings; (3)
violation of Welfare and Institutions Code § 317(c); and (4) violation of Welfare and Institutions Code § 317.5(b).
[3] The parties disagree about the standard of review applicable to the district court's decision to equitably abstain under O'Shea and
its progeny. We need not resolve the dispute today, because whether we review the district court's ruling de novo or for an abuse of
discretion, our conclusion remains the same. See, e.g., United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996) ("We need not
decide what the appropriate standard of review should be in the instant appeal ... because we would reach the same result
regardless of which one were applied.").

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