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ARISTOTLE P. v. JOHNSON

September 6, 1989

ARISTOTLE P., et al., Plaintiffs,
v.
GORDON JOHNSON and GARY MORGAN, Defendants


Anne Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANNE CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 The seven plaintiffs bring this three count complaint on the behalf of a class of similarly situated children pursuant to 42 U.S.C. § 1983 alleging that the defendants Gordon Johnson and Gary Morgan violated their rights under the First and Fourteenth Amendments and under the Adoptive Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679 ("AAA"). The defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court will grant the defendants' motion in part and deny the motion in part.

  I

 Rule 12(b)(6)

 When ruling on this motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court will "take the allegations in the complaint to be true and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiff." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985); cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). A complaint should be dismissed only when "it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle plaintiff to relief." Id. A "court must construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Moreover, "in 'complex cases involving fundamental rights and important questions of public policy, such preemptory treatment [as dismissal] is rarely appropriate.'" DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988), quoting Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir. 1988) (Ripple, J., concurring in part, dissenting in part).

 The pertinent factual allegations of the complaint are as follows. The plaintiffs are children who are wards of the court and are under the guardianship of the Illinois Department of Children and Family Services ("DCFS"). On September 15, 1988, when the complaint was filed, the plaintiffs ranged in age from one year to eighteen years old. The defendant Johnson, who is sued in his official capacity, is the Director of DCFS. He is responsible for developing, implementing, and administering the programs and practices of DCFS and for ensuring that DCFS' practices comply with all constitutional and statutory provisions. The defendant Morgan, who is also sued in his official capacity, is the Guardianship Administrator of DCFS. Morgan is responsible for establishing policies and procedures to provide adequate care and protection to children in placement. The plaintiffs challenge the defendant's practices of placing siblings in separate foster homes or residential facilities and denying the plaintiffs the opportunity to visit their sisters and brothers who are placed elsewhere. Complaint, para. 3.

 With the exception of the plaintiff Aristotle P., all of the Children were involuntarily removed from their families' homes by DCFS. *fn1" Each of the plaintiffs were physically separated from their siblings. This separation caused the plaintiffs to suffer emotional harm. Complaint, paras. 29, 31, 39, 41, 51, 69. DCFS had knowledge of the childrens' woes. Id. at paras. 29, 31, 39, 41. Some of the plaintiffs' foster parents informed DCFS of their willingness to facilitate visits between their foster children and his or her siblings. Id. at paras. 34, 70. Notwithstanding this, DCFS has either refused to arrange sibling visits *fn2" or has provided for them on an infrequent basis. *fn3" Mary Freeman, a DCFS worker, stated that DCFS is mandated to provide only parent and child visits. Id. at para. 54. The DCFS foster homes operated by Ada McKinley have a practice of prohibiting anyone, including relatives of their foster children, from coming into their foster homes. The McKinley homes also prohibit foster children from visiting other homes including those of their relatives. The defendants are aware of McKinley's practice and support it. Id. at paras. 70-72. The plaintiffs seek a declaratory judgment that DCFS' practices violate the First and Fourteenth Amendments and the AAA. They also seek injunctive relief. *fn4"

 II

 Count I: First Amendment Freedom of Association

 In Count I of the complaint, the plaintiffs contend that the defendants' practices of placing siblings in separate placements and then failing to provide visits among siblings on a reasonable basis violates their right to freedom of association under the First Amendment as applied to the state through the Fourteenth Amendment. Their theory is predicated on the Supreme Court's decision in Roberts v. United States Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984). In Roberts, the Court noted that it has "referred to constitutionally protected 'freedom of association' in the two distinct senses." Id. at 617. Freedom of association, as defined by one line of decisions, protects "choices to enter into and maintain certain intimate human relationships . . . against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Id. at 617-18. The relationship between two family members is the paradigm of such intimate human relationships. See Id. at 618-19. "In this respect, freedom of association receives protection as a fundamental element of personal liberty." Id. at 618. *fn5" The Children base their rights of freedom of association on the above language.

 The Supreme Court has cited Roberts for the proposition that the First Amendment embraces both variants of the right of freedom of association. See City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 1594, 104 L. Ed. 2d 18 (1989) ("While the First Amendment does not in terms protect a 'right of association,' our cases have recognized that it embraces such a right in certain circumstances"); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 545, 95 L. Ed. 2d 474, 107 S. Ct. 1940 (1987) "The First Amendment protects those relationships, including family relationships . . ."). Notwithstanding the Rotary International and the Stanglin decisions, some lower courts have interpreted Roberts to find that the right to enter into and maintain certain private, intimate relationships is guaranteed by the Due Process Clause of the Fourteenth Amendment. See IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir. 1988); Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1188-89 n.4 (10th Cir. 1985); Kukla v. Village of Antioch, 647 F. Supp. 799, 806 (N.D.Ill. 1986) (Moran, J.); see also, Mayo v. Lane, 867 F.2d 374, 375 (7th Cir. 1989) ("The concept of liberty in the Fourteenth Amendment has been held to embrace a right to associate with one's relatives"), Linder, Freedom of Association After Roberts v. United States Jaycees, 82 Mich.L.Rev. 1878, 1884-85 (1984).

 The chronological order in which the various decisions were issued provides one possible explanation for the divergent views as to which amendment protects the first variant of the right to freedom of association. The Stanglin case was decided after all of the lower court cases cited above. Nevertheless, even the members of the Supreme Court are not in unanimous agreement on this question. See Stanglin, 109 S. Ct. at 1597 (Steven, J., concurring). This court finds that the childrens' relationships with their siblings are the sort of "intimate human relationships" that are afforded "a substantial measure of sanctuary from unjustified interference by the State." Roberts, 468 U.S. at 618; see Trujillo, 768 F.2d at 1189 n. 5 (the siblings' "relationships at issue clearly fall within the protected range" established in Roberts); Cf. Rode v. Dellarciprete, 845 F.2d 1195, 1204-05 (3d Cir. 1988) (relationship with brother-in-law, a non-blood relative, is not protected). *fn6" The plaintiffs' relationships with their siblings are even more important because their relationships with their biological parents are often tenuous or non-existent. See Complaint, paras. 44-46, 48, 61, 67, 75, 83.

 The defendants' policies, which allegedly infringe on the plaintiffs' constitutionally protected right to associate with their siblings, must be evaluated under a heightened level of scrutiny. See Stanglin, 109 S. Ct. at 1594; Buckley v. Valeo, 424 U.S. 1, 25, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976). The defendants, as state actors, may infringe on an individual's right to associate if they have a sufficiently compelling interest that "cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, 468 U.S. at 623. The plaintiffs do not challenge the defendants' action which removed them from their parents or initial guardians and placed them in DCFS' custody. Accordingly, the court presumes that the defendants had a compelling interest in removing the plaintiffs from their initial home environment. However, in light of the policies at issue here, the question of whether the defendants could protect their compelling interest in a manner significantly less restrictive of associational freedoms is an open one. The plaintiffs argue that a DCFS policy which allowed and facilitated sibling visits ...


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