 - Photo: Anissa Thompson
By Erin Liotta
Child welfare reform advocates across the country breathed a sigh of relief when the US Court of Appeals reversed a lower court ruling that would have severely limited foster children’s ability to sue in federal court. On June 18, 2010, the Court of Appeals in the First Circuit revived a case dismissed in its entirety by the US District Court in Rhode Island.1 At issue was the suitability of next friends chosen to represent plaintiff children in a class action lawsuit. The foster children allege that the State of Rhode Island violated federal law and their constitutional rights by putting them at risk of serious harm while they were in foster care.2
The First Circuit’s decision “has granted [the children] the access they deserve to present their claims in federal court and seek relief for the harms they have suffered in Rhode Island’s custody,” said Susan Lambiase, associate director of Children’s Rights, which filed the lawsuit.
Next Friends of Sam And Tony M.
In lawsuits that seek to enforce the constitutional rights of foster children, the next friend plays a critical role. By law, a minor is not allowed to sue in federal court on his or her own behalf.3 Instead, under Rule 17 of the Federal Rules of Civil Procedure, a minor must sue either through a “duly appointed representative” or, in the absence of such representative, through a next friend.4 For foster children, who often lack stable adult figures in their lives and whose family court-appointed lawyers are often overburdened or have conflicts of interest, an outside next friend may be the only way to enforce their rights.
When the case was filed, the ten named plaintiff children in Sam and Tony M. v. Carcieri were represented by three next friends. One of the next friends had been a foster parent in Rhode Island for 20 years and acted as foster mother to one of the children from 1996 to 1998.5 Another next friend had grown close to one of the children when she was the boy’s school psychologist during the 2006-2007 school year.6 The third next friend, an Associate Professor of Sociology at Brown University, had never met the children but was an expert in child maltreatment and was familiar with the State’s foster care system.7 Shortly after the lawsuit was filed, the State moved to dismiss the case on grounds that the named next friends lacked capacity to sue on the children’s behalf.8
The District Court
The District Court was receptive to the State’s arguments, giving two reasons for dismissing the case. First, the court examined the role of the children’s court-appointed guardians ad litem (GALs).9 Under Rhode Island law, which mirrors laws across the country, children removed from their parents’ care due to abuse or neglect receive court-appointed GALs to represent them in family court proceedings.10 The District Court interpreted the role of the GAL as overlapping with that of a “duly appointed representative” for Rule 17 purposes.11 Rule 17 states that a next friend may only sue on a child’s behalf if there is no duly appointed representative.12 Because the court determined that the children in Sam and Tony M. already had such representatives, they could not sue through the next friends.
In addition to making this holding, which alone would have justified dismissing the case, the District Court analyzed the qualifications for being an appropriate next friend. Interpreting a 1990 US Supreme Court decision as requiring a “significant relationship” between the child and next friend, the District Court stated that the three next friends chosen for this case were not adequate.13 The court criticized the fact that two of the next friends had not seen the children for some time and the third next friend had not met the children at all.14 The court thus dismissed the lawsuit for lack of standing.15
The First Circuit: Context And Flexibility
After the case was dismissed, the plaintiffs appealed the decision to the First Circuit, where it was heard by a panel that included Justice David Souter.16 Rather than strictly determining that GALs were duly appointed representatives under Rule 17, the First Circuit looked closely at the role of the GAL in the context of Rhode Island law and national standards. Citing to an amicus brief signed by the National Center for Youth Law and 14 other organizations and experts, the court recognized that permitting only the GAL to initiate a federal lawsuit on a foster child’s behalf was impractical and at times in direct conflict with the GAL’s role as court-appointed representative on the child’s family law matters.17 Allowing the District Court’s decision to stand would thus have severely limited a foster child’s ability to sue in federal court, if the child could do so only through his or her state court-appointed GAL. The District Court’s decision also failed to address the dilemma of foster children who sometimes sue in federal court because the state failed to provide them with a legally required GAL.18 The First Circuit further found that Rhode Island’s own description of the GAL role, which limited GAL authority to family court dependency proceedings, indicated that the District Court was wrong to find that GALs were also duly appointed representatives under Rule 17.19
Additionally, rather than imposing a strict “current and significant relationship” requirement for all next friends, the First Circuit employed a more flexible analysis that accounted for the experiences of foster children.20 In so doing, the First Circuit recognized what the District Court did not: that by the very nature of their being in the state’s custody and in frequent transition, many children in foster care have no opportunity to form the “significant relationships” that courts might typically expect to see between a child and his next friend.21 The First Circuit therefore rejected the significant relationship test and instead asked courts to consider “whether a proposed Next Friend is ‘truly dedicated to the best interests’ of the minor.”22 Answering this question might involve consideration of a number of factors, including the next friend’s familiarity with the lawsuit, her motivation for pursuing the suit, and her ability to pursue the suit.23 Whether she has actually met the child will be but one factor for the court to consider among several.24
The First Circuit reversed the District Court and allowed the lawsuit to proceed with the next friends the plaintiffs originally proposed.25
Lessons Going Forward
The First Circuit’s decision bears significance for all children in Rhode Island, as the plaintiffs in Sam and Tony M. are said to represent a class of more than 3,000 abused or neglected children in the State’s foster care system.26
“The Court of Appeals has thrown open the doors that the District Court had closed to thousands of children whose lives and well-being continue even now to be imperiled by the failings of the Rhode Island child welfare system,” said Susan Lambiase. Associate Director of Children’s Rights’, which filed the lawsuit.
This victory for the plaintiffs is additionally important for all similar cases in other states. Had the original decision stood, other courts might have followed suit, thereby making state court-appointed GALs the gatekeeper to foster children accessing the federal court system in order to challenge the very state that failed to protect them.
Although the suit should reassure advocates considering or involved in similar litigation, the decision raises several cautionary flags. First, advocates should take care in selecting next friends. Although the First Circuit demonstrated flexibility here, other circuit courts adhere more strictly to the significant relationship requirement.27 To the extent that an advocate could arrange for the child and the prospective next friend to meet, and could ensure that the next friend is familiar with the child’s case file, that would only serve to strengthen the case for the adult’s suitability as next friend. The Sam and Tony M. decision also leaves unaddressed the question of what would happen if any existing relatives wanted to represent the children in the lawsuit. The First Circuit said that because the State failed to show that the children’s relatives wanted to represent them, it was proper for the court to appoint next friends instead.28 The court did not, however, address what would happen with the next friends if relatives did want to be involved in the case.
Finally, advocates should be aware that the First Circuit’s decision that a significant relationship is not required may be limited to the foster care context. The court clearly drew a connection between the children’s unstable lives and its decision not to require a significant relationship with a next friend.29 Therefore, advocates pursuing federal cases on behalf of children in other contexts may want to select a next friend with significant ties to the child.
Moving forward, other courts may follow the lead of the First Circuit in recognizing that “[i]mportant social interests are advanced by allowing minors access to a judicial forum to vindicate their constitutional rights.”30
1 Sam M. v. Carcieri, __ F.3d __, No. 09-1759, 2010 WL 2432353, at *12 (1st Cir. June 18, 2010).
2 Sam M., 2010 WL 2432353, at *1; Brief of Appellants at 4, Sam M. v. Carcieri, No. 09-1759 (1st Cir. Aug. 7, 2009).
3 See Fed. R. Civ. P. 17(c).
4 Ibid.
5 Sam M., 2010 WL 2432353, at *12.
6 Ibid.
7 Id. at *13.
8 Id. at *2, n. 5 (noting that because it is clear that the children are the real party in interest, the court would construe the defendants’ arguments about next friends’ lack of standing as actually challenging the next friends’ capacity to sue on behalf of the children).
9 For simplicity, this article uses the term “GAL” to encompass any court-appointed advocate representing a child in his or her dependency case. In Rhode Island, as in other states, this advocate may also be termed a “court-appointed special advocate.”
10 Sam M., 2010 WL 2432353, at *5 (citing R.I. Gen. Laws §§ 40-11-7.1, 40-11-14); Brief of Amici Curiae the National Association of Counsel for Children et al. in Support of Plaintiffs-Appellants at 14-15, Sam M v. Carcieri, No. 09-1759 (1st Cir. Aug. 14, 2009)).
11 Sam M., 2010 WL 2432353, at *2.
12 Fed. R. Civ. P. 17(c)(2).
13 Sam M., 2010 WL 2432353, at *7 (citing to Whitmore v. Arkansas, 495 U.S. 149 (1990)).
14 Sam M. v. Carcieri, 610 F. Supp. 2d 171, 183-84 (D.R.I. 2009).
15 Defendants had filed a motion to dismiss under Rule 12(b)(1). Brief of Appellants, supra note 2, at 4-5.
16 Justice Souter has sat on the panels of several First Circuit cases since his retirement from the Supreme Court last year.
17 Sam M., 2010 WL 2432353, at *6, n. 9; Brief of Amici Curiae, supra note 10, at 19.
18 NCYL’s recently filed lawsuit in Henry A. v. Wilden is one such example of a lawsuit that alleges the state failed to appoint representation.
19 Sam M., 2010 WL 2432353, at *6 (stating that “Rhode Island law seems to cabin the guardian ad litem’s authority to the proceedings in which the guardian is appointed,” consistent with national standards on the GAL role).
20 The First Circuit also stated that the District Court was wrong to read the Supreme Court case as requiring this particular factor. Sam M., 2010 WL 2432353, at *8.
21 Sam M., 2010 WL 2432353, at *8.
22 Id. at *10.
23 Ibid.
24 See ibid.
25 Sam M., 2010 WL 2432353, at *12.
26 Brief of Appellants, supra note 2, at 4.
27 For a survey and discussion of other Circuit Court approaches, see Sam M., 2010 WL 2432353, at *9.
28 Sam M., 2010 WL 2432353, at *7.
29 See id. at *10.
30 Ibid.
Erin Liotta is a law clerk at NCYL, working with attorneys Rebecca Gudeman and Christiana Macfarlane on adolescent health work, and assisting attorney Bryn Martyna on Henry A. v. Willden, NCYL’s foster care reform case in Las Vegas. A graduate of Yale, Erin is entering her third year at Berkeley Law.
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