United States Court of Appeals
For the First Circuit
No. 09-1759
SAM and TONY M., by Next Friend Gregory C. Elliott;
CAESAR S., by Next Friend Kathleen J. Collins; DAVID T.,
by Next Friend Mary Melvin; BRIANA, ALEXIS, CLARE, and
DEANNA H., by Next Friend Gregory C. Elliott; and
DANNY and MICHAEL B., by Next Friend Gregory C. Elliott;
for themselves and those similarly situated,
Plaintiffs, Appellants,
v.
DONALD L. CARCIERI, in his official capacity as Governor
of the State of Rhode Island; JANE A. HAYWARD, in her
official capacity as Secretary of the Executive Office of
Health & Human Services; and PATRICIA MARTÍNEZ, in her
official capacity as Director of the Department of
Children, Youth and Families,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Susan Lambiase, Children's Rights, with whom Marcia Robinson
Lowry, Shirim Nothenberg, Jessica Polansky, John W. Dineen, Vernon
Winters, Weil, Gotshal & Manges LLP, and Jametta O. Alston, Rhode
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Island Office of the Child Advocate, were on brief for appellants.
Erik S. Pitchal, Assistant Clinical Professor of Law, Suffolk
University Law School, for amici curiae the National Association of
Counsel for Children, the Children's Law Center of Los Angeles,
Youth Law Center, the Hofstra Child Advocacy Clinic, the Legal Aid
Society, the Children's Advocacy Institute, Children's Law Center
of Massachusetts, Lawyers for Children, Prof. Don Duquette, the
Rutgers Child Advocacy Center, Children's Law Center of Minnesota,
the University of Miami School of Law's Children & Youth Law
Clinic, National Center for Youth Law, First Star, and Prof.
Michael Dale, in support of appellants.
Andrew B. Prescott, Steven M. Richard, Nixon Peabody LLP, for
amici curiae Rhode Island Affiliate, American Civil Liberties
Union, in support of appellants and in favor of reversal.
Seema A. Misra, Jennifer C. Arnett, Stroock & Stroock & Lavan
LLP, for amici curiae The Field Center for Children's Policy
Practice & Research at the University of Pennsylvania, in support
of appellants and in support of reversal.
Brenda D. Baum, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General, and James R. Lee, Assistant Attorney
General, Rhode Island Department of the Attorney General, were on
brief for appellees.
June 18, 2010
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TORRUELLA, Circuit Judge. This appeal raises important
questions regarding an individual's capacity to sue as a
representative of minors in state foster care custody alleging
violations of their civil rights.
On June 28, 2007, Mary Melvin, Kathleen J. Collins, and
Gregory C. Elliott (collectively, the proposed Next Friends), filed
a class action suit on behalf of foster care children who are under
the legal custody of Rhode Island's Department of Children, Youth
and Families (DCYF). The complaint sought declaratory and
injunctive relief pursuant to 42 U.S.C. § 1983 and alleged that by
maintaining systemic deficiencies in Rhode Island's child welfare
and foster care systems, the state has deprived plaintiffs of their
rights under the United States Constitution and several federal
statutes. The proposed Next Friends sought to pursue the present
civil rights case on behalf of foster care children who are unable
to sue for themselves due to their minority.1 The district court
dismissed the complaint finding that the Next Friends lacked
capacity to sue on behalf of Plaintiffs.
1
The complaint initially named ten children as Plaintiffs.
However, three of the children were subsequently adopted and
therefore, they are not currently under DCYF custody. The district
court concluded that the children's adoption rendered their claims
moot and Plaintiffs have not challenged this conclusion on appeal.
After the district court rendered its opinion, Plaintiff Deanna H.
was adopted and thus her claims are also moot. The remaining named
Plaintiffs, who are identified by pseudonyms to protect their
identities, are Sam and Tony M, David T., Danny and Michael M., and
Caesar S.
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For the reasons stated below, we reverse the district
court's order and judgment dismissing the children's complaint and
remand the case with instructions to allow the Next Friends to
represent the named Plaintiffs in this suit.
I.
A.
Because this appeal follows the district court's
dismissal of Plaintiffs' complaint, we recite the relevant facts
"accepting as true all well-pleaded facts in the complaint and
drawing all reasonable inferences in the plaintiffs' favor."
Hostar Marine Transp. Sys., Inc. v. United States, 592 F.3d 202,
207 (1st Cir. 2010) (citing Sutliffe v. Epping Sch. Dist., 584 F.3d
314, 325 (1st Cir. 2009)). But given that the district court made
findings of fact regarding the proposed Next Friends authority to
represent the children in this case, we review the court's factual
findings for clear error. See Skwira v. United States, 344 F.3d
64, 72 (1st Cir. 2003).
The present suit was initiated by Rhode Island's Child
Advocate, Jametta O. Alston.2 Under Rhode Island law, the Child
Advocate is endowed with the responsibility of protecting the
interests and rights of children who are placed under DCYF custody.
2
Defendants do not challenge the Child Advocate's statutory
authority to initiate the present suit on the children's behalf.
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See R.I. Gen. Laws § 42-73-7.3 The Child Advocate claims that due
to widespread and serious deficiencies in Rhode Island's child
welfare system, she endeavored to identify individuals suited to
vindicate the children's constitutional rights in federal court.
She explains that the persons closely connected to the children
either have potential conflicts of interests with the children or
declined to be involved in the suit on the children's behalf. The
Child Advocate claims that the proposed Next Friends are well-
suited to litigate the present class action suit on behalf of the
children who were named as Plaintiffs as they "are sincerely
motivated to pursue the best interests of the children."
On June 28, 2007, the proposed Next Friends filed the
present class action suit on behalf of the named Plaintiffs.4 The
class was defined as "all children who are or will be in the legal
custody of the Rhode Island Department of Children, Youth and
Families due to a report or suspicion of abuse or neglect." The
complaint sought declaratory and injunctive relief against
defendants, Donald L. Carcieri, in his official capacity as the
Governor of Rhode Island; Jane A. Hayward in her official capacity
3
Among others, the Child Advocate has the power to recommend
changes in the child welfare system and to "take all possible
action including, but not limited to programs of public education,
legislative advocacy, and formal legal action, to secure and ensure
the legal, civil, and special rights of children" that are under
DCYF custody. R.I. Gen. Laws § 42-73-7.
4
Plaintiffs filed an amended complaint on September 7, 2007.
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as Rhode Island's Secretary of the Executive Office of Health and
Human Services; and Patricia Martínez, in her official capacity as
Director of the DCYF (collectively, "Defendants"). The complaint
alleged violations of the children's substantive and procedural due
process rights under the Fourteenth and Fifth Amendments to the
United States Constitution; deprivations of the children's liberty,
privacy, and associational rights protected by the First and
Fourteenth Amendments; violations of their statutory rights under
the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§
621; 622; 629; 671; 672; 675 and its accompanying regulations 45
C.F.R. §§ 1355-57; as well as breach of contractual obligations
between the state of Rhode Island and the federal government to
which the children claim to be third party beneficiaries.
The crux of Plaintiffs' complaint is that foster care
children in Rhode Island are neglected and abused both physically
and emotionally, and are generally deprived of the care and
protection the DCYF owes to them in violation of the children's
right to a safe living environment. The complaint further stated
that Defendants engaged in a policy, pattern, practice or custom of
placing children in foster care homes and other institutions that
do not meet the children's needs, thereby depriving them of their
substantive due process rights. Finally, the complaint alleged
that the DCYF follows a pattern or practice of placing foster care
children in temporary foster care homes, shelters, and other
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institutions for inordinate amounts of time and fails to comply
with the state's obligation under the Adoption and Child Welfare
Act to provide children with safe and permanent placements.
In due course, Defendants filed a motion to dismiss the
complaint for lack of subject matter jurisdiction arguing, inter
alia, that the proposed Next Friends lacked standing to sue on
behalf of the named Plaintiffs.5 Defendants maintained that the
children were adequately represented by guardians ad litem who were
appointed by Rhode Island Family court to represent the children in
family court proceedings. Additionally, Defendants claimed that
the proposed Next Friends could not show they were truly dedicated
to the children's best interests or that they had a significant
relationship with the children.
The district court held evidentiary hearings to evaluate
the proposed Next Friends' capacity to represent the children's
interests. During the course of several days of hearings, the
5
Although Defendants claim the proposed Next Friends lack
standing to sue, we are not here concerned with whether the
proposed Next Friends have suffered an injury within the context of
an Article III case or controversy. From the face of the complaint
it is clear that the children are the real party in interest and
their standing to sue has not been challenged in this case. Morgan
v. Potter, 157 U.S. 195, 198 (1895) (explaining that a Next Friend
is "neither technically nor substantially the party, but resembles
an attorney, or a guardian ad litem, by whom a suit is brought or
defended in behalf of another"). We therefore construe Defendants'
claims as challenging the proposed Next Friend's capacity to sue on
behalf of the children. See Gardner by Gardner v. Parson, 874 F.2d
131, 137 n.9 (3d Cir. 1989) (explaining that Article III standing
is not implicated when an individual claims "capacity to sue as
representative of an incompetent" pursuant to Rule 17(c)).
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proposed Next Friends explained their relationship with Plaintiffs
and their motivation to serve as their representatives in this
case. In a decision and order dated April 29, 2008, the district
court granted Defendants' motion to dismiss. The court held that
the family court-appointed guardians ad litem were the children's
duly appointed representatives as defined in Rule 17(c) of the
Federal Rules of Civil Procedure. The district court also stated
that the proposed Next Friends had failed to show they had a
significant relationship with the children they wanted to represent
and therefore declined to allow the proposed Next Friends to serve
as the children's representatives in federal court.
Plaintiffs filed this timely appeal. They challenge the
district court's decision to deny Next Friend status to the
proposed Next Friends. They also claim the district court erred in
dismissing the suit without first ensuring that the children
enjoyed adequate representation in federal court.
B.
Plaintiffs are foster care children who remain in the
legal custody of the DCYF. It is undisputed that Rhode Island's
family court has been involved in the decision-making process
regarding the children's well being and interests. However, as the
complaint and the record show, Plaintiffs have been placed in
temporary homes, shelters, and state facilities for several years.
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Plaintiffs have also been exposed to abuse and neglect, and no
permanent placements have been found for them.6
Before addressing the legal issues raised in this appeal,
we examine the children's background and their life histories
within Rhode Island's child welfare and foster care systems.
1. David T.
David T. ("David") has been in DCYF custody since 1996.
He was removed from his mother's custody due to neglect. In April
1998, David's mother lost her parental rights and the DCYF was
named David's legal guardian.
In 1996, David was placed with a foster mother, Ms. Mary
Melvin ("Ms. Melvin"). After living with Ms. Melvin, David was
placed in shelters and later in several psychiatric facilities as
he exhibited behavioral problems and was diagnosed with several
psychological disorders. In December 2000, David was transferred
to St. Vincent's Home, a residential treatment facility where he
lived for a period of two years. In 2003, David was moved to a
different treatment facility where he received individualized
treatment for several emotional and psychological disorders. By
November 2004, David had not been placed for adoption. David's
case plan then directed that adoption was not feasible and that an
6
In their complaint, Plaintiffs claim they have suffered great
harms while in DCYF custody due to the DCYF's negligence and
failure to provide them with safe and permanent placements. We,
however, do not advance any criteria regarding the merits of
Plaintiffs' claims.
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alternate permanent placement was to be found. In February 2006,
David was moved to yet another psychiatric facility where he also
received treatment for his mental health problems. In 2007, David
was transferred to another facility in Massachusetts where he
receives treatment and educational services.
2. Caesar
Caesar was first placed in DCYF custody in December 2002
due to neglect. Caesar was sixteen-months-old. Since then, Caesar
has navigated the foster care system. He has lived in shelters,
foster care homes, and temporary family placements. From January
2003 until September 2004, Caesar lived with a paternal aunt who
had drug problems. Caesar was then placed with a great-aunt for
nine days. Despite allegations that he was beaten at his aunt's
house, in October 2004 Caesar was once again placed in his aunt's
custody. In light of evidence that Caesar was beaten at his aunt's
house, he was then moved to his paternal grandmother in September
2005. In 2007, the family court granted the DCYF's petition to
terminate parental rights and determined that Caesar was a
candidate for adoption. Caesar remains in DCYF custody.
3. Sam and Tony M.
Sam and Tony M. are brothers who were placed in DCYF
custody in May 1999 due to allegations that their mother had
substance abuse and mental health problems. The complaint details
that the boys were victims of sexual and physical abuse and
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neglect. After the DCYF took custody of Sam and Tony in 1999, they
were placed in the home of a family friend. From 2000 to 2003, Sam
and Tony were returned to their birth mother's custody. During
that period, the boys were abused and neglected by their birth
mother, step-father and grand-father. In 2003, Sam and Tony were
once again placed in foster care. They were subsequently returned
to their birth mother's custody until May 2004 when they were
placed in a group care facility. In 2005, Sam and Tony were
transferred to different psychiatric hospitals where they received
visits from their maternal grandparents. The record reveals that
the boys continue to live in separate institutions. On August 4,
2006, the family court determined that reasonable efforts to
reunify Sam and Tony with their birth mother were no longer
required; stated that the DCYF had filed for termination of
parental rights; and decreed that Sam and Tony were candidates for
adoption.
4. Danny and Michael B.
Due to parental neglect, siblings Danny and Michael B.
have been in DCYF custody since April 2005. They were initially
placed with their maternal great-grandmother. The great-
grandmother, however, was unable to care for the boys and they were
then placed in separate foster homes. Michael was later returned
to his great-grandmother's home, while Danny was placed in a foster
home where he was sexually abused. Both boys have suffered from
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mental health problems which the complaint alleges were not
properly and timely addressed by the DCYF. In July 2006, Danny was
sexually assaulted in his foster home and was then moved to his
great-grandmother's home where Michael resides. Danny was
eventually transferred to a state group facility where he receives
treatment for mental health problems. Parental rights were
terminated in November 2006 and the DCYF is currently the boys'
legal guardian.
II.
We address two main issues in this appeal. First, we
examine whether the children have duly appointed representatives
that would preclude appointment of the proposed Next Friends in
this case. Second, we examine the propriety of allowing the
proposed Next Friends to represent the children in the present
suit.
Rule 17(c) of the Federal Rules of Civil Procedure
governs a minor or incompetent's access to federal court. It
directs that a minor or incompetent may sue in federal court
through a duly appointed representative which includes a general
guardian, committee, conservator, or like fiduciary. Fed. R. Civ.
P. 17(c)(1). If a minor lacks a general guardian or a duly
appointed representative, Rule 17(c)(2) directs the court either
appoint a legal guardian or Next Friend, or issue an order to
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protect a minor or incompetent who is unrepresented in the federal
suit. Fed. R. Civ. P. 17(c)(2).
The appointment of a Next Friend or guardian ad litem is
not mandatory. Thus, where a minor or incompetent is represented
by a general guardian or a duly appointed representative, a Next
Friend need not be appointed. See Developmental Disabilities
Advocacy Ctr., Inc. v. Melton, 689 F.2d 281 (1st Cir. 1982)
(declining to appoint Next Friend where plaintiffs had general
guardians or duly appointed guardians who opposed the federal
suit); Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir.
1989)(holding that a minor's mother lacked authority to proceed as
Next Friend in federal suit where the federal court had appointed
a guardian ad litem to represent the child). However, Rule 17(c)
"gives a federal court power to authorize someone other than a
lawful representative to sue on behalf of an infant or incompetent
person where that representative is unable, unwilling or refuses to
act or has interests which conflict with those of the infant or
incompetent." Ad Hoc Comm. of Concerned Teachers v. Greenburgh No.
11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d Cir. 1989); Melton,
689 F.2d at 285 (stating that Rule 17(c) allows federal courts to
appoint a Next Friend or guardian ad litem where there is a
conflict of interest between the minor and her general
representative).
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The minor's best interests are of paramount importance in
deciding whether a Next Friend should be appointed, but the
ultimate "decision as to whether or not to appoint [a Next Friend
or guardian ad litem] rests with the sound discretion of the
district court and will not be disturbed unless there has been an
abuse of its authority." Melton, 689 F.2d at 285. See also
Fernández-Vargas v. Pfizer, 522 F.3d 55, 66 (1st Cir. 2008).
III.
A.
It is undisputed that Plaintiffs have been represented in
Rhode Island family court proceedings by court-appointed guardians
ad litem, also known as Court Appointed Special Advocates ("CASA
attorneys").7 The record shows that throughout the different
custody and child welfare proceedings, each child was represented
by court-appointed guardians ad litem or CASA Attorneys; while some
children were represented by five or six guardians throughout the
course of several years.
The district court found that the family court-appointed
guardians ad litem or CASA attorneys were the children's duly
7
Under Rhode Island law, "[a]ny child who is alleged to be abused
or neglected as a subject of a petition filed in family court,
. . . shall have a guardian ad litem and/or a court-appointed
special advocate (CASA) appointed by the Court to represent th[e]
child, all in the discretion of the court." R.I. Gen. Laws § 40-
11-14. "The Office of the Court Appointed Special Advocate is an
arm of the Rhode Island Family Court. It consists of several
attorneys who are knowledgeable in juvenile law, social workers and
volunteers from the community." 03-011-001 R.I. Code R. (2009).
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appointed representatives and thereby concluded that a suit by Next
Friend was inappropriate. Plaintiffs contend, however, that
nothing in the Rhode Island statutes and regulations dealing with
court appointed guardians ad litem or CASA attorneys authorizes
these advocates to represent children beyond the confines of the
family court proceedings in which they are appointed. Defendants
explain that guardians ad litem under Rhode Island law have
authority to represent children in family court proceedings up
until the child is adopted and they maintain the district court was
correct in holding the guardians ad litem are the children's duly
appointed representatives.
State law generally governs an individual's capacity to
represent a minor or incompetent in federal court. Fed. R. Civ. P.
17(b)(3) (stating that an individual's capacity to sue in a
representative capacity is determined by "the law of the state
where the court is located"); Melton, 689 F.2d at 285. We thus
exercise plenary review over the district court's determination
regarding Rhode Island law. Salve Regina Coll. v. Russell, 499
U.S. 225, 231 (1991). We also review de novo the district court's
interpretation of Rule 17(c). See NEPSK, Inc. v. Town of Houlton,
283 F.3d 1, 5 (1st Cir. 2002) (reviewing de novo the court's
interpretation of Federal Rule of Civil Procedure 12(c)).
Under Rhode Island law, the family court has authority to
"[a]ssure that a guardian ad litem and/or a court appointed special
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advocate [is] appointed to represent the child."8 R.I. Gen. Laws
§ 40-11-7.1 (b)(3); see also § 40-11-14. Family court-appointed
guardians ad litem or CASA attorneys represent a minor throughout
the course of the family court proceedings in which they are
appointed. Zinni v. Zinni, 238 A.2d 373, 376 (R.I. 1968). If the
child is placed under DCYF custody, the guardian's representation
continues throughout family court proceedings until a petition for
adoption is granted. In re Christina D., 525 A.2d 1306, 1308 (R.I.
1987).
In construing the scope of a guardian ad litem's
authority, the Rhode Island Supreme Court has explained that the
family court exercises its power of appointment "to the end that
the guardian . . . can assist the court in determining the rights
of the minor in the tribunal where the guardian is appointed."
Zinni, 238 A.2d at 376 (emphasis added). Rhode Island courts also
recognize that where a guardian is properly appointed to represent
the child in family court proceedings, the guardian's authority may
extend to appellate proceedings, provided that the minor's
interests are involved on appeal. Id.
8
An amicus brief filed by the National Association of Counsel for
Children ("NACC") in conjunction with other nonprofit and public
interest organizations, explains that Rhode Island's regulations
regarding family court guardians ad litem or CASA attorneys are
consistent with national standards of practice that limit the
attorneys' authority and responsibilities to child welfare and
dependency matters brought before the court in which the attorney
is appointed.
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While a family court appointment allows the guardian to
represent her ward on appeal, we have not found any Rhode Island
authority for the proposition that guardians appointed by the
family court have power to represent their wards in non-family
court proceedings.9 Moreover, Rhode Island law seems to cabin the
guardian ad litem's authority to the proceedings in which the
guardian is appointed. See R.I. Gen. Laws § 40-11-7.1 (b)(3),
§ 40-11-14; see also Exec. Order, R.I. S. Ct. No. 2004-02 at 2,
("Court appointed counsel . . . provide representation throughout
all stages of adjudication in Family Court.").
Not just any guardian is allowed to represent a minor or
incompetent in federal court. See Morgan, 157 U.S. at 197 (stating
that a guardian's authority is generally limited to the state court
and explaining that a guardian may only sue in a federal court
sitting in another state if the laws of the state allow the foreign
guardian to seek relief). Since it does not appear that Rhode
Island law confers general authority on guardians ad litem or CASA
attorneys to represent the children outside family court
proceedings, we find that the children's guardians ad litem cannot
9
The amicus brief filed by the NACC explains that in many
instances, guardians ad litem or CASA attorneys may be unable to
represent the children in federal court due to large caseloads.
For example, a report issued by the Rhode Island Family Court
reveals that CASA attorneys on average manage 400 cases. NACC's
Amicus Br. at 21 citing, Jeremiah S. Jeremiah, Jr., Chief Judge,
Judiciary of Rhode Island, Family Court: Overview of its
Departments and Functions (2006), http://www.courts.state.ri.
us/family/overview.htm.
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be considered the children's general guardians, like fiduciaries or
duly appointed Rule 17(c) representatives.10 Thus, the district
court erred in finding that the state-appointed guardians ad litem
or CASA advocates precluded Plaintiffs from filing suit by a Next
Friend.11
B.
Defendants further claim that Plaintiffs have the burden
of showing that the children's relatives either approved the filing
of the federal suit on the children's behalf or did not oppose it.
It is their contention that the Child Advocate's allegation that
10
The district court stated that the guardians ad litem were the
children's duly appointed representatives. However, it never
clarified whether it considered the guardians ad litem to be the
children's "general guardian, committee, conservator or like
fiduciary." Fed. R. Civ. P. 17(c)(1). To the extent that the
district court found the guardians ad litem were the children's
"dully appointed representatives," we assume that the court
considered, without stating so, that the guardians met the
requirements of a Rule 17(c)(1) representative.
11
We recognize that in the exercise of its discretion to appoint
a Next Friend under Rule 17(c)(2), a federal court may find that a
state-appointed guardian ad litem may serve as a minor's duly
appointed Rule 17(c) representative if the guardian petitions the
federal court to represent the child and the court finds the
guardian is an appropriate Next Friend. See M.K. through Hall v.
Harter, 716 F. Supp. 1333, 1335 (E.D. Cal. 1989) (finding that a
state-appointed guardian ad litem could serve as a minor's Rule
17(c) representative); see also Susan R.M. by Charles L.M. v. Ne.
Indep. Sch. Dist., 818 F.2d 455 (5th Cir. 1987) (holding that where
state law vests authority on a state-appointed managing conservator
to bring actions on behalf of a minor, the conservator could bring
a federal suit as the infant's representative, thereby depriving
the infant's father of "standing" to pursue a federal suit as Next
Friend). In the present suit, however, the state-appointed
guardians ad litem have not requested appointment as Next Friends.
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"[t]he persons most closely connected to the children, including
foster parents, guardians ad litem, or relatives, either posed a
potential conflict or expressed concern regarding possible
retaliation from [DCYF] or other state entities and declined to
become involved," is insufficient to allow the proposed Next
Friends to represent the children.
The record shows that Plaintiff David has an older
brother who called David on a weekly basis and visited him at least
twice from 2004 through 2007. Although Caesar's parents lost their
parental rights and Caesar was placed for adoption in 2007, in 2003
and 2004 Caesar was placed with a paternal aunt and in 2005 he was
placed with his paternal grandmother. Likewise, although
Plaintiffs Danny and Michael are under the legal guardianship of
the DCYF, the record shows that in 2005 Michael was placed under
the care of his maternal great grandmother. As to Plaintiffs Sam
and Tony, the record reveals that their grandparents regularly
visited the boys from April to July 2006.
While the children may have maintained contact with some
relatives, there is no indication that these relatives could serve
as the children's general guardians or representatives. In
examining an individual's suitability to pursue a federal suit as
a Next Friend, we have found that no Next Friend appointment is
needed where a minor or incompetent has a general or duly appointed
guardian who is available to represent the minor or incompetent and
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who opposes the filing of the federal suit by a Next Friend.
Melton, 689 F.2d at 285-86 (holding that minor's mother, who was
considered the minor's natural guardian under state law and had
acted in the past to safeguard the minor's well-being, could be
recognized as the minor's representative). But we are not here
faced with plaintiffs who have general guardians who could preclude
a Next Friend appointment or whose consent may be needed to file
suit in federal court. See Garrick, 888 F.2d at 693 (holding that
a minor's mother lacked authority to proceed as Next Friend in suit
where the court had appointed a guardian ad litem to represent the
child as to that particular matter). In this case, the children's
relatives have not moved to represent them in federal court; there
is no indication that they are willing or able to represent them;
and Plaintiffs have alleged that these relatives either refused or
are unable to sue on their behalf.12
Moreover, Plaintiffs have been placed under the legal
custody and/or guardianship of the state of Rhode Island. It is
thus reasonable to conclude that the adults with whom Plaintiffs
12
Because Plaintiffs sued Defendants for the DCYF's alleged abuse
of its trust and fiduciary duties as the children's legal
custodian, we cannot sanction Defendants' attempt to oppose a Next
Friend appointment and deflect a suit filed against them on the
basis of a general assertion that the children may have other
relatives who could represent them or who should be consulted.
Given that Defendants effectively control the children's lives as
the children's legal custodian, we think they are ideally suited to
show that the children have relatives who could serve as the
children's representatives. They have failed to do so.
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have maintained some contact are not willing, able, or available to
pursue a legal action against the state of Rhode Island.13 See
Greenburgh, 873 F.2d at 30 ("since the Children are no longer in
the care and custody of their natural parents, those adults have
little involvement with the daily aspects of the Children's
schooling and are not likely to prosecute this type of action").
In these circumstances, Rule 17(c) allows federal courts discretion
to appoint a Next Friend to represent the children in federal
court. Id. at 29.
C.
Where as here, a minor lacks a general guardian or a duly
appointed representative, the court has discretion to appoint a
Next Friend. The district court found that the proposed Next
Friends lacked a significant relationship with the children and
therefore dismissed the lawsuit. In so holding, the district court
interpreted the Supreme Court's decision in Whitmore v. Arkansas,
495 U.S. 149 (1990), as requiring an individual who wishes to serve
as Next Friend to show that she has a "substantial relationship"
with the minor or incompetent.
13
Plaintiffs Caesar, David, Danny, and Michael, are under the
DCYF's legal guardianship. Because the children's parents or
natural guardians are unavailable, it is reasonable to conclude
that the children lack general guardians or representatives to
pursue the present suit against their legal guardian. While it
appears that Sam and Tony M.'s mother still enjoys her parental
rights, the boys are candidates for adoption and there is no
indication in the record that after losing custody of the boys in
1999, the mother is available to represent the children.
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Defendants understand the Supreme Court's decision in
Whitmore to require a significant relationship between a Next
Friend and the real party in interest. But Defendants also argue
that regardless of whether Whitmore should be read to require a
significant relationship as a prerequisite for Next Friend status,
the district court was correct in considering the existence of a
significant relationship as a factor in assessing the propriety of
appointing the proposed Next Friends to represent Plaintiffs. In
contrast, Plaintiffs contend that Whitmore does not require a
significant relationship as a prerequisite to Next Friend standing
and they explain that the difficulties foster care children face in
forging lasting and significant relationships cautions against
requiring a significant relationship in these cases.
This is the first time we expound the criteria a Next
Friend should meet in the context of a suit filed on behalf of
foster care children. We undertake this analysis with guidance
from other courts that have tailored the Next Friend analysis to
the realities of foster care children and to the general principle
that litigants should be afforded access to federal courts in
pursuit of their constitutional and statutory rights. We also
acknowledge the helpful amicus brief filed by the Field Center for
Children's Policy, which illustrates the realities of foster care
children and explains that due to maltreatment, multiple
placements, and social and psychological issues, foster care
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children are often unable to forge significant relationships with
the adults that are entrusted to protect the children's interests.
The fact that Plaintiffs filed suit against their legal guardian
for alleged violations of the state's obligations as their guardian
and custodian further informs our analysis.
Next Friend capacity is not lightly granted to any
individual who petitions a federal court to pursue an action on
behalf of another. Id. at 163. Rule 17(c) recognizes that an
individual may represent the real party in interest as a Next
Friend but it offers no clear guidance regarding who may proceed as
a Next Friend. In the context of a petition to appeal a state
court conviction on behalf of a death row inmate, the Supreme Court
held in Whitmore that a Next Friend should comply with "two firm
prerequisites:" (1) an adequate explanation-such as
inaccessibility, mental incompetence, or other disability-why the
real party in interest cannot appear on his own behalf to prosecute
the action; and (2) a showing that the Next Friend is "truly
dedicated to the best interests of the person the Next Friend seeks
to represent." Id. While the Supreme Court recognized that some
courts have "suggested" that a Next Friend must also have a
significant relationship with the real party in interest, the Court
did not hold that a significant relationship is a necessary
prerequisite for Next Friend status. Id. at 163-64; see also
Whitmore, 495 U.S. at 177 (Marshall, J., dissenting) (recognizing
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that the majority opinion suggested, without holding, that a Next
Friend may have to prove she has "some significant relationship
with the real party in interest").
Just as the parties in this case dispute whether Whitmore
should be interpreted to require a significant relationship between
a proposed Next Friend and the real party in interest, federal
courts have debated, mainly in the context of prisoner habeas
litigation, whether and to what extent a significant relationship
is or should be required for Next Friend status. This Court has
not decided whether a Next Friend must meet the significant
relationship requirement as a prerequisite to Next Friend status.
See Figueroa v. Rivera, 147 F.3d 77, 82 (1st Cir. 1998)(declining
to appoint Next Friend in the prisoner litigation context after
finding that the real party in interest had capacity to pursue the
habeas petition and explaining that an individual who seeks to file
a habeas petition as a prisoner's Next Friend needs to show "there
is a valid reason why she is better situated than the prisoner to
pursue the writ"). However, other circuit courts have held that
some sort of significant relationship is necessary to assess an
individual's suitability to pursue a habeas petition on behalf of
another.
For example, in Hamdi v. Rumsfeld, the Fourth Circuit
interpreted Whitmore as requiring a finding that the proposed Next
Friend has a significant relationship with the real party in
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interest. 294 F.3d 598, 604 (4th Cir. 2002) (declining to confer
Next Friend standing to public defender and private citizen to
pursue habeas petition on behalf of military detainee where the
proposed Next Friends had no prior relationship or communication
with petitioner); see also Padilla v. Rumsfeld, 352 F.3d 695, 703
n.7 (2d Cir. 2003)(assuming there is a significant relationship
requirement for Next Friend status and finding that an attorney had
a significant relationship with petitioner where the attorney had
advised petitioner during his military confinement; interviewed
petitioner and met with his family; and represented petitioner
during the course of legal proceedings related to his confinement),
overruled on other grounds by Rumsfeld v. Padilla, 542 U.S. 426
(2004); Centobie v. Campbell, 407 F.3d 1149 (11th Cir. 2005)
(holding that public defender lacked a significant relationship
with petitioner where the attorney had never represented petitioner
and lacked any other relationship with him).
In Hamdi, however, the Fourth Circuit court declined to
decide "how significant" the relationship had to be to satisfy Next
Friend status. 294 F.3d at 604. More importantly for our
analysis, the court clarified that where an individual "has no
significant relationships," a significant relationship might not be
required in order to allow the person to proceed through a Next
Friend. Id. ("We do not have here the situation of someone who has
no significant relationships. If we did, this might be a different
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case."). Similarly, the Ninth Circuit has cautioned that "the
contours of the requisite 'significant relationship' do not remain
static, but must necessarily adapt to the circumstances." Coal. of
Clergy, Lawyers & Professors v. Bush 310 F.3d 1153, 1162 (9th Cir.
2002). Therefore, where the real party in interest lacks "a
relative, friend, or even a diplomatic delegation able or willing
to act on their behalf[,] . . . a person with 'some' relationship
conveying some modicum of authority or consent, 'significant' in
comparison to the detainee's other relationships, could serve as
the next friend." Id.
In evaluating an individual's capacity to serve as Next
Friend for minors who lack ties with their parents and family
members, federal courts have rejected a rigid application of the
significant relationship requirement, holding that the common-law
concept of Next Friend is capacious enough to include individuals
who pursue a suit in good faith on behalf of a minor or
incompetent. See Greenburgh, 873 F.2d at 30; Dwayne B. v.
Granholm, No. 06-13548, 2007 WL 1140920 (E.D. Mich. April 17,
2007)(allowing foster care children to appear in federal court by
Next Friends who had met the children through the state's foster
care system and finding that plaintiff's former foster care parent
was an adequate Next Friend as she was familiar with the child's
circumstances); Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y.
1976). In this vein, the Second Circuit held in Greenburgh that
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"court[s] should consider the good faith of those claiming to speak
for the infant and satisfy [themselves] that the 'next friend' is
motivated by a sincere desire to seek justice on the infant's
behalf." 873 F.2d at 30.
In contrast, the Seventh Circuit adheres to the view that
in the interest of discouraging suits by individuals who do not
have concrete stakes in a litigation and who only have ideological
stakes in the minor's case, Whitmore should be read to require a
significant relationship. T.W. & M.W. by Enk v. Brophy, 124 F.3d
893, 897 (7th Cir. 1997) ("not just anyone who expresses an
interest in the subject matter of a suit is eligible to be the
plaintiff's next friend."). Although the Seventh Circuit seems to
have adopted the significant relationship requirement, it also
clarified that
if a close relative is unavailable and the
child has no conflict-free general
representative the court may appoint a
personal friend of the plaintiff or his
family, a professional who has worked with the
child, or, in desperate circumstances, a
stranger whom the court finds to be especially
suitable to represent the child's interests in
the litigation.
Id.
While we agree that the significant relationship
requirement may avert litigation by individuals who lack a concrete
stake in the litigation, and also "enhances the probability that a
petitioner is a suitable Next Friend," Coal. of Clergy, Lawyers &
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Professors, 310 F.3d at 1162, we believe that because these foster
care children lack significant ties with their parents and have
been placed under the state's legal custody and guardianship, a
significant relationship need not be required as a prerequisite to
Next Friend status. Important social interests are advanced by
allowing minors access to a judicial forum to vindicate their
constitutional rights through a Next Friend that the court finds
has a good faith interest in pursuing a federal claim on the
minor's behalf; particularly where, as here, the minors seek relief
for alleged violations of the guardian's duty to protect them.
In determining whether a proposed Next Friend is "truly
dedicated to the best interests" of the minor, courts may consider
the individual's familiarity with the litigation, the reasons that
move her to pursue the litigation, and her ability to pursue the
case on the child's behalf. Evidence that the proposed Next Friend
has met the child he seeks to represent certainly enhances the
individual's suitability as a Next Friend. See id. at 1162
(explaining that the more attenuated the relationship between the
proposed Next Friend and the real party in interest, the less
likely the Next Friend can know the party's best interests). But
access to federal courts need not be denied to a minor Plaintiff if
the court finds that the proposed Next Friend has a good faith
belief that she can adequately represent the child in federal
court. As the Second Circuit aptly stated in Greenburgh, "[w]e
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would not sanction any attempt to assert the legitimate rights of
children as a mere pretext for advancing ulterior political or
economic aims." 873 F.2d at 31.
Having clarified the hallmarks a Next Friend should bear,
and given that the record developed by the district court amply
reveals the extent of the proposed Next Friends' interest in the
present suit and the reasons why they chose to litigate the present
suit on the children's behalf, we proceed to determine whether they
are suitable Next Friends. We examine each Next Friend in turn.
1. Ms. Melvin, Next Friend to David
Ms. Melvin served as a foster parent in the Rhode Island
foster care system for twenty years. She took David as her foster
child in 1996 and had David under her care and custody for two
years. During David's stay with Ms. Melvin, Ms. Melvin had some
contact with DCYF social workers and attended various Family Court
proceedings. After David was removed from her home to be placed
for adoption, Ms. Melvin was allowed to visit him at the shelter in
which he was placed and was even able spend some days with him.
She lost contact with David and has not seen him since
approximately 1998.
Ms. Melvin testified that she agreed to be David's Next
Friend because she considers David part of her family and is
willing to help him. She explained that as a Next Friend to David
she is trying to "help make things better for him." She understood
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that as David's Next Friend she could be called to participate in
settlement discussions and she would have to make decisions on
David's behalf.
On the basis of this evidence, Ms. Melvin has
demonstrated she is acting in good faith and is genuinely motivated
to help David seek relief in federal court. Although Ms. Melvin
need not necessarily show she had a significant relationship with
David, it is undeniable that she is familiar with David's situation
as she cared for him for two years, and is aware of the inner
workings of the foster care system having served as a foster mother
for twenty years. Ms. Melvin's suitability is not undermined by
the fact that she has not seen David for several years given that
there is no indication that she is pursing this litigation for
reasons other than protecting David's interests. We thus find that
Ms. Melvin may proceed as David's Next Friend.
2. Kathleen Collins ("Ms. Collins"), Next Friend to
Caesar
Ms. Collins was Caesar's school psychologist during the
2006-2007 school year. Ms. Collins testified that she worked with
Caesar in the classroom setting as well as outside of class and was
able to "bond" with Caesar during that year. She last saw Caesar
towards the end of May 2007 and was unable to contact him despite
attempts to do so.
Collins testified that she has worked with a number of
foster care children. She understands that a Next Friend appears
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before the court to "represent the interests of [a] particular
child in getting justice from the system, to assist . . . and
support him in seeking some sort of . . . justice." Collins
testified that she agreed to be Caesar's Next Friend because she
believes this is an important case and the children deserve
justice. She stated she was available to pursue the lawsuit and
agreed she would be available to make decisions on Caesar's behalf.
It is beyond question that Ms. Collins wishes to
represent Caesar's interests in this lawsuit in order to protect
his interests. Her suitability as a Next Friend is certainly
enhanced by the fact that she knows Caesar and is familiar with his
situation. Ms. Collins understands her role as Next Friend and is
willing and able to litigate on Caesar's behalf. She is also
familiar with the realities foster care children face and has shown
an interest in helping Caesar. This is enough to show she is truly
dedicated to Caesar's best interests. We believe that Ms. Collins
is a suitable Next Friend to Caesar.
3. Gregory Elliot ("Dr. Elliot"), Next Friend to Sam,
Tony, Danny, and Michael14
Dr. Elliot is an Associate Professor of Sociology at
Brown University with a focus on child maltreatment. Dr. Elliot
admitted he has not met the children or their relatives but
14
Dr. Elliot also petitioned to sue as Next Friend for Deanna.
The record shows that Deanna was adopted and therefore the suit
became moot as to her.
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explained that due to his research on social psychology and child
maltreatment, he is familiar with the circumstances foster care
children face while in the state's custody. He understands that a
Next Friend is "someone . . . of legal competence who acts on
behalf of minors who have no legal competence in the court." Dr.
Elliot testified that after studying the complaint and the
documents filed in the case regarding the children's situation, he
believes the children have been placed in dire circumstances and
concluded it was in the children's best interests to pursue the
present suit.
The district court found that because Dr. Elliot had not
met the children and had not reviewed the children's family court
and medical files, he could not serve as Next Friend. We do not
believe this automatically disqualifies him as a Next Friend,
however. Dr. Elliot testified he is aware of the issues and
problems children face in foster care and he is familiar with the
perils to which Plaintiffs have been exposed. He showed that due
to his expertise and research he has a good faith desire to pursue
the children's best interests in federal court. We find no
evidence that Dr. Elliot is akin to the often feared ideologue that
pursues an action for purely political or ideological reasons.
Nothing in the record questions Dr. Elliot's good faith or
indicates that he is pursuing the present suit for reasons other
than a genuine concern for the children's well-being. Dr. Elliot
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is adequately prepared and willing to actively prosecute the types
of claims the children have raised against the state of Rhode
Island. We thus find that Dr. Elliot is an appropriate Next
Friend.
Although appointment of a Next Friend is not mandatory,
nothing in the record intimates that the proposed Next Friends are
not acting in good faith or that they won't be able to pursue this
suit on the children's behalf. We thus find that the proposed Next
Friends are suited to represent the children in this case.15
IV.
For the foregoing reasons the order of the district court
dismissing the complaint is reversed. We remand the case with
directions to reinstate the complaint and allow Ms. Melvin, Ms.
Collins, and Dr. Elliott to proceed as the children's Next Friends.
Reversed and Remanded.
15
Because we find that the district court abused its discretion
in declining to appoint the proposed Next Friends to represent
Plaintiffs, we need not address the propriety of the court's
decision to dismiss the complaint without appointing other Next
Friends. See Adelman on Behalf of Adelman v. Graves, 747 F.2d 986,
989 (5th Cir. 1984)(reversing the district court's dismissal of
complaint filed on behalf of an incompetent and holding that the
district court improperly dismissed the case without first
determining whether the incompetent's interests were adequately
represented); Gardner, 874 F.2d at 140 (holding that the district
court, after finding that the proposed Next Friends were
inadequate, "should have appointed a next friend or at the least
held a hearing to determine whether a next friend should be
appointed").
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