govinfo:USCOURTS-akd-3_22-cv-00129-1

IN THE UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF ALASKA 
 
 
JEREMIAH M., HANNAH M., and 
HUNTER M., by their next friend Lisa 
Nicolai; MARY B. and CONNOR B., 
by their next friend Charles Ketcham; 
DAVID V., GEORGE V., 
LAWRENCE V., KAREN V., and 
DAMIEN V., by their next friend Merle 
A. Maxson; RACHEL T., ELEANOR 
T., and GAYLE T., by their next friend 
Rebecca Fahnestock; and LANA H., by 
her next friend Melissa Skarbek, 
individually and on behalf of all others 
similarly situated, 
 
Plaintiffs, 
 
vs. 
 
ADAM CRUM, Director, Alaska 
Department of Health and Social 
Services, in his official capacity; KIM 
GUAY, Director, Office of Children’s 
Services, in her official capacity; 
ALASKA DEPARTMENT OF 
HEALTH AND SOCIAL SERVICES; 
and ALASKA OFFICE OF 
CHILDREN’S SERVICES, 
 
Defendants. 
 
 
 
Case No. 3:22-cv-00129-JMK 
 
 
ORDER GRANTING IN PART 
AND DENYING IN PART 
MOTION TO DISMISS 
 
 
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M., et al. v. Crum, et al.  Case No. 3:22-cv-00129-JMK 
Order Granting in Part and Denying in Part Motion to Dismiss Page 2 
  Pending before the Court is Defendants ’ (1) Motion to Dismiss  at 
Docket 23,1 and (2) Motion for Judicial Notice at Docket 21 .  Both motions are fully 
briefed.2  The Court heard oral argument on December 20, 2022, 3 and thereafter took the 
matter under advisement.  For the reasons stated herein, Defendants’ Motion to Dismiss is 
GRANTED IN PART and DENIED IN PART.  
I.    BACKGROUND 
  This is a putative class action brought by fourteen children  (“Plaintiffs” or 
the “Named Plaintiffs”) who are in the custody of Alaska ’s Office of Children’s Services 
(“OCS”).4  Defendants are (1) the Alaska Department of Health and Social Se rvices 
(“DHSS”); (2) Adam Crum, the director of DHSS; (3) OCS; and (4) Kim Guay, the director 
of OCS.5  DHSS is “the principal human services agency of the government of the state of 
Alaska,” and OCS is the subdivision of DHSS that is “responsible for the safety and welfare 
of children in foster care in Alaska.”6  In this lawsuit, Plaintiffs seek wide-ranging reform 
of Alaska’s foster care system, alleging that it has become so riddled with dysfunction that 
it harms the children it is designed to protect.   These allegations, when taken as true,  
describe unacceptable governmental failures affecting society’s most vulnerable members.  
The predominant question at this stage , one that is not easily answered, is to where 
Plaintiffs may turn for relief.   
 
  1  An unredacted version of the Motion to Dismiss was filed under seal at Docket 25. 
  2  Docket 29; Docket 30; Docket 32; Docket 36; Docket 38. 
  3  Docket 43 (minute entry).  
  4  Docket 16 ¶¶ 12–22.  
  5  Id. ¶¶ 23–26. 
  6  Id. ¶¶ 24–26. 
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A. Plaintiffs’ Allegations 
  Plaintiffs a ssert that the structural failures within Alaska’s child welfare 
system violate their federal statutory and constitutional rights.  These failures include high 
caseworker turnover  and unmanageable caseloads, which  together “prevent OCS from 
adequately supervising and providing services to the children in its protective custody. ”7  
Plaintiffs allege that foster children in OCS ’s custody are subjected to frequent 
destabilizing placement changes. 8  This placement instability arises in part from OCS ’s 
failure to “recruit , reimburse and maintain enough foster homes and other community-
based placements.” 9  Plaintiffs claim that OCS caseworkers fail to provide timely, 
appropriate case plans, and fail to engage in prompt permanency planning.10  According to 
the Complaint, OCS does not provide necessary services to foster children, and “[s]ervices 
pertaining to mental health and substance abuse [] are particularly lacking.”11  The lack of 
appropriate foster homes  and inadequate access to services  particularly affects children 
with disabilities , who are often placed in inappropriately restrictive environments. 12  
Plaintiffs allege that OCS frustrates the federal and state preference for kinship placements 
by failing to adequately support kinship foster families through financial assistance and 
help with licensure.13 
 
  7  Id. ¶ 168; id. ¶¶ 152–168. 
  8  Id. ¶¶ 172–73. 
  9  Id. ¶ 175.  
 10  Id. ¶¶ 182–202. 
 11  Id. ¶ 206. 
 12  Id. ¶¶ 177, 211.  
 13  Id. ¶¶ 216–41. 
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  In particular, Plaintiffs claim that OCS’s practices particularly harm Alaska 
Native children, who are disproportionately represented in the Alaska foster care system.14  
The Complaint contains allegations that OCS overlooks or disregards potential placements 
within an Alaska Native child ’s family or community, and places Alaska Native children 
in non-Native placements, “severing them from their culture and identity.”15   
  The Complaint details the foster care experiences of the fourteen Named 
Plaintiffs.  These experiences are characterized by frequent placement disruptions,  
placements in foster homes that are  ill-equipped to address the child’ s needs , 
institutionalizations, a lack of access to case plans,  and inadequate access to  services.16  
Plaintiffs bring claims on behalf of themselves and on behalf of a proposed class consisting 
of “all children for whom OCS has or will have legal responsibility and who are or will be 
in the legal and physical custody of OCS.”17  In addition, Plaintiffs bring claims on behalf 
of three proposed subclasses: 
 (1) Alaska Native children who are or will be 
entitled to fede ral Indian Child Welfare Act (“ICWA ”) 
protection (the “Alaska Native Subclass”); 
 
 (2) Children who are or will be in foster care and 
experience physical, cognitive, or  psychiatric disabilities (the 
“ADA Subclass”); 
 
 (3) Children who currently reside or will reside in a 
kinship foster home —the home of a family member —who 
 
 14  Id. ¶ 252. 
 15  Id. ¶¶ 252, 259.  
 16  Id. ¶¶ 41–140. 
 17  Id. ¶ 28(a).  
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meet the criteria to receive foster care maintenance payments 
under 42 U.S.C. § 672 (the “Kinship Subclass”).18 
 
B. OCS and CINA Proceedings 
  In Alaska, children alleged to be at “ high risk of maltreatment or unsafe by 
their caregiver [are] assessed by OCS.”19  Alaska law requires OCS, after receiving a report 
of harm to a child, to conduct an initial assessment and determine whether the report is 
substantiated.20  If the allegation of harm to a child is substantiated, OCS may file a petition 
for adjudication of a child as a “child in need of aid” or “CINA. ”21  In certain 
circumstances, OCS may take emergency custody of a child, either with or without a court 
order.22  The Alaska Superior Court then must hold a temporary custody hearing, which is 
conducted within 48 hours if OCS took emergency custody of the child,  or no later than 
five business days following the filing of a petition when the child was not taken into  
emergency custody.23  The child and parents may be present, and the parents may request 
a continuance to prepare a response to the allegations.24  At the temporary custody hearing, 
the Superior Court determines whether probable cause exists for believing the child to be 
a child in need of aid. 25  Within 120 days after a finding of probable cause, the S uperior 
 
 18  Id. ¶¶ 28(b)–(d). 
 19  STATE OF ALASKA, CHILD PROTECTION SERVICES (CPS) POLICY MANUAL, ch.2.1(A) 
(revised October 1, 2016):  http://dpaweb.hss.state.ak.us/training/OCS/cps/index.htm#t= 
Policies%2FChapter_2_Intake_and_Investigation%2F1_Intake%2F2.1_PSR.htm (last accessed 
August 29, 2023).   
 20  See Alaska Stat. § 47.17.030(a).  OCS may also refer the matter to a local governmental 
health agency, if appropriate.  Id. 
 21  See Alaska Stat. § 47.10.020(e); CINA Rule 7(a). 
 22  Alaska Stat. § 47.10.142. 
 23  Alaska Stat. § 47.10.142(d); CINA Rule 10(a)(1)(A)–(B).  
 24  Alaska Stat. § 47.10.142(d).  
 25  Alaska Stat. § 47.10.142(e). 
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Court must hold an adjudication hearing,  at the conclusion of which the court “shall find 
and enter a judgment that the child is or is not a child in need of aid.” 26  If the court finds 
that the child is a child in need of aid , it may order the child committed to  the temporary 
custody of OCS.27  The Superior Court then holds a disposition hearing at which the court 
may either order the child committed to OCS for placement in an appropriate setting , or 
order the child released to a parent, adult family member , or other guardian. 28  If the 
Superior Court orders the child committed to OCS custody, it must hold a permanency 
hearing at least annually during the continuation of foster care to “determine i f continued 
placement, as it is being provided, is in the best interest of the child.” 29  At permanency 
hearings, the S uperior Court makes written findings  as to certain questions, including 
“whether the child continues to be a child in need of aid”; “ whether the child should be 
placed for adoption or legal guardianship”; and “whether the parent or guardian has made 
substantial progress to remedy the parent’s or guardian’s conduct or conditions in the home 
that made the child a child in need of aid.”30   
  While a child is in OCS custody, OCS has responsibility for the care and 
control of the child, including “the determination of where and with whom the child shall 
live,” subject to any residual parental rights.31  Thus, OCS, not the Superior Court, has the 
authority to direct placements of foster children in its care. 32  OCS is responsible for 
 
 26  Alaska Stat. § 47.10.080(a). 
 27  Alaska Stat. § 47.10.080(c)(1). 
 28  Alaska Stat. § 47.10.080(c)(1), (2).  
 29  Alaska Stat. § 47.10.080(f). 
 30  CINA Rule 17.2(e)–(f). 
 31  Alaska Stat. § 47.10.084. 
 32  Matter of B.L.J., 717 P.2d 376, 380 (Alaska 1986). 
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making “timely, reasonable efforts to provide family support services to the child and to 
the parents or guardian of the child that are designed to prevent out-of-home placement or 
to enable the safe return of the child to the family home.”33  If OCS proposes to transfer a 
child from one placement setting to another, “the child, the child’s parents or guardian, the 
child’s foster parents or out -of-home caregiver, the child’s guardian ad litem, the child ’s 
attorney, and the child’s tribe are entitled to advance notice .”34  A party opposed to the 
proposed transfer may request a hearing and must prove by clear and convincing evidence 
that the transfer would be contrary to the best interests of the child for the court to deny the 
transfer.
35 
II.    DISCUSSION 
  Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 for violations of their 
(1) substantive due process rights under the Fourteenth Amendment ; (2) rights to familial 
association under the First, Ninth, and Fourteenth Amendments; (3)  rights under the 
ICWA, 25 U.S.C. §1901, et seq.; and (4) rights under the Adoption Assistance and Child 
Welfare Act of 1980 (the “AACWA”), 42 U.S.C. § 672(a).36  Plaintiffs also bring claims 
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131,  et seq., and the 
Rehabilitation Act, 29 U.S.C. § 794.37  Defendants move to dismiss under various doctrines 
of abstention as well as Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).38  
 
 33  Alaska Stat. § 47.10.086. 
 34  Alaska Stat. § 47.10.080(s). 
 35  Id. 
 36  Docket 16 ¶¶ 264–97. 
 37  Id. ¶¶ 298–315. 
 38  Docket 23.  
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A. Judicial Notice 
  At Docket 21, Defendants  request that the Court take judicial notice of 
several state court pleadings and orders filed in Plaintiffs ’ CINA cases  (the “CINA 
filings”).  Plaintiffs filed an opposition at Docket 29, arguing that Defendants seek judicial 
notice of the factual findings within the CINA proceedings in a  “direct attempt[] to attack 
Plaintiffs’ well-pleaded factual allegations and to misuse the judicial notice doctrine.”39  In 
reply, Defendants urge that the CINA filings  are not being offered for the truth of the 
factual findings therein,  but rather to demonstrate the scope of Plaintiffs ’ CINA cases to 
allow the Court to determine the appropriateness of abstention.40 
  Courts may take judicial notice of fact s that are “not subject to reasonable 
dispute” because they are “(1)  generally know n within the trial court’ s territorial 
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 
cannot reasonably be questioned. ”41  Courts may judicially notice information in another 
courts’ proceedings, such as the progress of a case, the issues that were litigated, and what 
the judge ordered; however, courts may not take judicial notice of the truth of any factual 
findings in other courts’ documents.42 
 
 39  Docket 29 at 6; see also Docket 29 at 5–7. 
 40  Docket 32 at 2–4.  
 41  Fed. R. Evid. 201(b).  
 42  Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking 
judicial notice of court transcripts and briefs “[t]o determine what issues were actually litigated” 
in other courts); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“On a Rule 12(b)(6) 
motion to dismiss, when a court takes judicial notice of another court’s opinion, it may do so ‘not 
for the truth of the facts recited therein, but for the existence of the opinion, which is not subject 
to reasonable dispute over its authenticity.’”); see also Eliott v. Lions Gate Ent. Corp ., No. 2:21-
cv-08206-SSS-DFMx, 2022 WL 17408662, at *3 (C.D. Cal. Nov. 8, 2022). 
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  The Court finds that the CINA filings  are proper subjects of judicial notice.   
Plaintiffs do not dispute the authenticity or accuracy of the CINA filings , and Defendants 
rely on these filings for the fact of their existence, not the truth of the facts recited therein.43  
Defendants cite to the CINA filings  to demonstrate wh ich issues have been litigated in 
Plaintiffs’ CINA cases and what the Superior Court judges have previously ordered; they 
do not attempt to import the S uperior Court’s factual findings .44  This is a proper use of 
judicial notice.  Accordingly,  Defendants’ Motion for Judicial Notice at Docket 21 is 
GRANTED.  
B. Abstention 
  Defendants argue that the Court should abstain from exercising jurisdiction 
over Plaintiffs ’ claims under (1)  Younger v. Harris , 401 U.S. 37 (1971)  (“Younger 
abstention”); (2) O’Shea v. Littleton, 414 U.S. 488 (1974)  (“O’Shea abstention”); (3) the 
principle that child welfare proceedings fall within a traditional area of state authority; and 
(4) Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1923) , and D.C. Court of Appeals v. 
Feldman, 460 U.S. 462 (1983)  (“Rooker-Feldman abstention”).  The Court begins its 
analysis by noting that abstention is the exception rather than the rule. 45  Federal courts 
 
 43  Plaintiffs take issue that certain orders entered by the S uperior Court in the CINA 
proceedings are forms on which the Superior Court judge checks boxes and then signs.  Docket 29 
at 7 n.4.  Plaintiffs do not argue that these orders are not authentic or that they lack the force and 
effect of a court order.  Rather, Plaintiffs claim these orders are “unreliable” because the Superior 
Court judge need not add additional information or explain their checking of a box.  A court order 
whose authenticity is not questioned is properly subject to judicial notice.  United States v. Chaplin, 
No. 3:19-cr-00121-SLG, 2021 WL 149677, at *1 (D. Alaska Jan. 15, 2021) (taking judicial notice 
of Alaska state court documents).  A court order’s brevity or format has no effect on this analysis.  
 44  See Docket 23 at 34–35, 41–42; Docket 25 at 35–36, 42–43 (sealed).  
 45  New Orleans Pub. Serv., Inc. v. Council of City of New Orleans  (“NOPSI”), 491 U.S. 
350, 359 (1989).  
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have a “virtually unflagging obligat ion .  . . to exercise the jurisdiction given them.” 46  
Abstention therefore is appropriate only in limited, carefully defined circumstances.47 
(1) Younger abstention 
  Defendants argue that the Court must abstain from hearing this case because 
the broad injunctive relief sought by Plaintiffs would interfere with Plaintiffs ’ ongoing 
CINA proceedings. 48  In “exceptional circumstances” federal courts m ust abstain from 
adjudicating a case in deference to a parallel state court proceeding pursuant to Younger v. 
Harris, 401 U.S. 37 (1971)  (hereinafter, “Younger”).49  Such “exceptional circumstances 
exist .  . . in three types of proceedings ”:  (1) “ongoing state criminal prosecutions”; 
(2) certain “quasi-criminal” civil enforcement proceedings; and (3)  “pending civil 
proceedings involving certain orders uniquely in furtherance of the state courts ’ ability to 
perform their judicial functions.”50  In Sprint Communications, Inc. v. Jacobs, the Supreme 
Court held that these three “exceptional” categories “define Younger’s scope.”51  Thus, if 
a case does not fit within these three categories, Younger abstention is not appropriate. 52  
 
 46  Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).  
 47  Gilbertson v. Albright, 381 F.3d 965, 969 n.2 (9th Cir. 2004) (quoting Green v. City of 
Tucson, 255 F.3d 1086, 1089 (9th Cir. 2001)).  
 48  Docket 23 at 21.  No parties appear to dispute that Plaintiffs ’ CINA proceedings are 
“ongoing” state proceedings for the purposes of Younger.  See ReadyLink Healthcare, Inc. v. State 
Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). 
 49  Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013) (quoting NOPSI, 491 U.S. at 
350).  
 50  Id. (citations and internal quotation marks omitted).  
 51  Id.; see also ReadyLink Heal thcare, Inc., 754 F.3d at  759 (observing that Sprint  
“squarely [held] that Younger abstention is limited to the ‘three exceptional categories ’ of cases 
identified in [NOPSI].”). 
 52  Sprint, 571 U.S. at 81–82 (“In short, to guide other federal courts, we today clarify and 
affirm that Younger extends to the three ‘exceptional circumstances’ identified in NOPSI, but no 
further.”).  
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However, if a civil case fits within one of the Younger categories, the court considers three 
additional factors to determine whether Younger abstention is warranted (the “Middlesex 
factors”):  whether (1) there is an ongoing state judicial proceeding; (2)  the proceeding 
implicates important state interests; and (3) there is an adequate opportunity in the state 
proceedings to raise federal challenges.53  Defendants assert that this case fits into the two 
categories of civil cases to which Younger applies.54   
(a) “Quasi-criminal” civil enforcement proceedings 
  First, Defendants argue that state child welfare proceedings constitute quasi-
criminal civil enforcement actions under Younger.55  The Supreme Court has found that 
applying Younger to instances of civil enforcement  actions is appropriate when the state 
proceedings are “akin to a criminal prosecution” in “important respects. ”56  Such 
enforcement actions are (1) “characteristically initiated to sanction the federal plaintiff, i.e., 
the party challenging the state action, for some wrongful act” ; (2) often initiated by the 
state; and (3) “[i]nvestigations are commonly involved, often culminating in the filing of a 
formal complaint or charges.”57  In Moore v. Sims, parents and their three minor children 
brought suit in federal court challenging the constitutionality of the Texas statutory scheme 
for temporary removal of children from their homes due to allegations of abuse. 58  T he 
 
 53  Id. at 81 (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass ’n, 457 U.S. 
423, 432 (1982)).  
 54  The first category of cases to which Younger applies—ongoing state criminal 
prosecutions—plainly is inapplicable here.  
 55  Docket 23 at 23–26. 
 56  Sprint, 571 U.S. at 79 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).  
 57  Id. at 79–80.  
 58  442 U.S. 415 at 421–22. 
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Supreme Court held that state-initiated proceedings to gain custody of children allegedly 
abused by their parents fell under the umbrella of civil enforcement actions to which 
Younger applies because the “State .  . . was a party to the state proceedings , and the 
temporary removal of a child in a child -abuse context is . . . ‘in aid of and closely related 
to criminal statutes. ’”59  Defendants stand on Moore and argue that its holding compels 
this Court to abstain in this case.60   
  Post-Sprint, there is a circuit split regarding Moore’s reach .  The Ninth 
Circuit has not yet lent its voice to this debate.  Defendants cite cases fr om the Third, 
Seventh, and Eighth Circuits , contending that “the majority of circuit courts that have 
considered this issue .  . . have followed Moore  and held that state abuse -and-neglect 
proceedings are the type of proceedings to which Younger applies.”61  Plaintiffs counter 
with cases from the Fourth Circuit and a district court within the Ninth Circuit, arguing that 
“Moore is distinguishable from the case here in which Plaintiffs are foster children alleging 
constitutional and statutory violations while in the State’s custody.  Plaintiffs’ claims here 
are not in aid of or closely related to criminal statutes.”62  
  In 2022, the  Seventh Circuit and the Fourth Circuit each considered the 
applicability of Moore to foster care class actions, reaching conflicting results as to 
 
 59  Id. at 423 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).  
 60  Docket 23 at 24. 
 61  Id. at 25.  Defendants also rely on pre -Sprint caselaw to argue for abstention.  (first 
citing 31 Foster Child. v. Bush, 329 F.3d 1255 (11th Cir. 2003); and then citing Joseph A. ex rel. 
Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002)).  These cases analyzed Younger abstention 
utilizing only the Middlesex factors.  Therefore, they are of limited assistance in resolving the issue 
before the Court.  
 62  Docket 36-2 at 32–33.  
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Younger abstention.  The Seventh Circuit concluded summarily that  Younger abstention 
was appropriate because “[w]e know from [Moore] that Younger applies to state-initiated 
child-welfare litigation.” 63  By contrast, the Fourth Circuit  found that quarterly status 
review hearings conducted by state courts to review foster care children’s placements “are 
simply not ‘ of the sort entitled to Younger  treatment’” because “[t]hey do not fit any 
historical precedent applying the doctrine” and abstaining would “forward none of the 
comity interests our federalist system holds dear.” 64  In so holding, the Fourth Circuit 
rejected defendants’ comparison to Moore, noting that the Court in Moore was concerned 
with the impingement of parental rights in the initial child-removal proceeding, whereas 
“the ongoing individual hearings here serve to protect the children who would be plaintiffs 
in federal court. ”65  The Court found that it would “ turn decades of Supreme -Court 
jurisprudence— and logic —on its head to put these foster children in the shoes of the 
abusive parents in [Moore].”66  
  In Tinsley v. McKay, 156 F. Supp. 3d 1024, 1032 (D. Ariz. 2015) , the U.S. 
District Court for the District of Arizona  relied on the distinction between initial child 
removal proceedings and periodic placement review hearings to conclude  that Younger 
abstention did not apply.  The court found that the “animating purpose of the ongoing 
dependency proceedings in this case is to plan for and monitor the development and well-
being of children, not to investigate or penalize those who might have contributed to their 
 
 63  Ashley W. v. Holcomb, 34 F.4th 588, 591 (7th Cir. 2022). 
 64  Jonathan R. by Dixon v. Justice, 41 F.4th 316, 328 (4th Cir. 2022). 
 65  Id. at 330.  
 66  Id. 
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dependency.”67  The court concluded that the juvenile court revie ws have an “indirect 
relationship to the enforcement of criminal laws,” and therefore are not quasi-criminal for 
the purposes of Younger.68  
  Following the logic of Tinsley and Jonathan R., this Court finds that the state 
CINA court proceedings at issue here are not quasi -criminal proceedings under Younger.  
Plaintiffs’ ongoing CINA proceedings are missing the defining feature of this Younger 
category— enforcement.  Unlike in the majority of cases that Defendants cite 69—Moore ; 
Oglala Sioux Tribe v. Fleming, 904 F.3d 603 (8th Cir. 2018) ; and the unpublished  
Vaughn:Douce v. New Jersey Div. of Child Prot. & Permanency , No. 21 -1596, 2021 
WL 3403670 (3d Cir. Aug. 4, 2021)—parents of the plaintiff foster children are not parties 
in this suit. 70  The absence of parties against  whom criminal statutes would be enforced 
makes this suit fundamentally dissimilar  from others that fall within the quasi- criminal 
category.71  A nd a s the Ninth Circuit recently found in the insurance conservatorship 
context, “the complete lack of sanctions being sought against Appellants belie any punitive 
 
 67  Tinsley v. McKay, 156 F. Supp. 3d 1024, 1034 (D. Ariz. 2015).  
 68  Id.  
 69  Docket 23 at 24. 
 70  In Oglala, Indian tribes and parents of Indian children who had been removed from 
their homes amidst abuse allegations challenged a South Dakota law establishing the process for 
removal of children from their homes in exigent circumstances.  904 F.3d at 606.  The Eighth 
Circuit held that Younger abstention was appropriate because there was “no meaningful distinction 
between the custody proceedings in Moore  and the temporary custody proceedings in South 
Dakota.”  Id. at 610.  In Vaughn:Douce, a father sued in federal district court for custody of his 
daughter after a state agency initiated proceedings against him to terminate his parental rights.  
2021 WL 3403670, at *1 (3rd Cir. Aug. 4, 2021).  The Third Circuit found that this posture 
triggered Younger abstention.  Id. at *2. 
 71  See Sprint, 571 U.S. at 79 (noting that civil enforcement actions under Younger “are 
characteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state 
action, for some wrongful act”). 
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character” to the state proceedings, which “underscores why Younger abstention is not 
proper in this case.”72    
  Further, allegations of child abuse are not relevant to the relief sought.  The 
Plaintiff foster children seek relief from treatment they have received while  they were in 
state custody.73  They do not challenge the initial custody decision or the CINA courts ’ 
determination that they are children in need of aid and should be committed to the custody 
of OCS.  That Plaintiffs do not challenge the initial removal decision rids this suit of a close 
connection to the enforcement of criminal laws.  Given the characteristics of this lawsuit, 
an expansion of Younger into this realm bloats the meaning of “quasi” in “quasi -
criminal.”74  
  Defendants take issue with an approach that distinguishes between an initial 
custody decision and ongoing child welfare proceedings.  They argue  that “nothing in 
Moore suggests courts should draw a distinction between the initial hearing, where the 
child is removed from his or her parents, and subsequent hearings in the same case, where 
that removal is re -evaluated and other decisions about the child are reviewed .”75  
Defendants assert that this distinction is artificial because , “in Alaska[,] . . . the initial 
 
 72  Applied Underwriters, Inc. v. Lara, 37 F.4th 579, 589 (9th Cir. 2022). 
 73  See Connor B. ex rel. Vigurs v. Patrick , 771 F. Supp. 2d 142, 154 (D. Mass. 2011)  
(“Defendants’ argument fails to appreciate that Plaintiffs ’ claims relate only to alleged injuries 
suffered while in DCF custody.  TPR proceedings are the means by which Plaintiffs enter DCF 
custody, and Plaintiffs expressly state that they are not challenging any aspect of those proceedings 
in this case.”).  
 74  Bryan C. v. Lambrew, 340 F .R.D. 501, 510 (D. Me. 2021) (“The parallel proceedings 
involving the Plaintiffs may involve periodic reviews by the state court, but they lack any element 
that would put them into the quasi-criminal category.”). 
 75  Docket 38 at 5.  
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removal hearing is part of a single, unitary case bearing the same case number, before the 
same superior court judge.”76  Defendants read Moore too broadly.  Moore stands for the 
proposition that state -initiated proceedings to gain custody of children from parents 
accused of abuse is sufficiently clo sely related to criminal statutes to warrant quasi -
criminal treatment under Younger.  Moore and its progeny do not suggest that, if the 
initiation of a state proceeding is considered an act of civil enforcement, a state court ’s 
continuing oversight of one of the parties affected by that enforcement —here, the foster 
children—continues to bear the “enforcement” label.  Moore therefore does not demand 
the conclusion that , after a child is placed in OCS custody, proceedings to review the  
child’s placements and permanency plans are akin to a criminal prosecution.   Although 
Defendants argue that the Court ’s decision relies on a hair -splitting distinction , this 
distinction is most faithful to the Supreme Court’ s consistent reminder that 
“[c]ircumstances fitting within the Younger doctrine . . . are ‘exceptional.’”77 
(b) State interest in enforcing state court orders and judgments 
  Second, Defendants argue that, even if Plaintiffs’ CINA cases are not quasi-
criminal, they fall into Younger ’s third category:   “civil proceedings involving certain 
orders that are uniquely in furtherance of the state courts ’ ability to perform their judicial 
functions.”78  Defendants assert that the injunctive relief Plaintiffs seek would interfere 
with the state courts’ decisions about foster children’s placements and services.79   
 
 76  Id.  
 77  Sprint, 571 U.S. at 73.  
 78  Docket 23 at 26.  
 79  Id.  
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  The third Younger category is exceedingly narrow .  It  covers proceedings 
that implicate the  “state courts ’ ability to enforce compliance with judgments already 
made.”80  It has been invoked in cases involving “ ‘core’ orders involv[ing] the 
administration of the state judicial process —for example, an appeal bond requirement,  a 
civil contempt order, or an appointment of a receiver.” 81  This case, by contrast, does not 
implicate the administration of the state judicial process or the state courts ’ ability to 
enforce compliance with their  judgments.  The relief in this case is d irected at OCS, not 
the state courts.  In NOPSI, the Supreme Court noted that “it has never been suggested that 
Younger requires abstention in deference to a state judicial proceeding reviewing 
legislative or executive action.  Such a broad abstention requirement would make a 
mockery of the rule that only exceptional circumstances justify a federal court’s refusal to 
decide a case in deference to the States.”82 
  Still, Defendants urge that OCS ’s compliance with the injunctive relief  
sought here would “limit superior courts ’ authority to make the fact -intensive decisions 
they make every day in CINA cases.” 83  They contend that “the relief Plaintiffs request 
would effectively enjoin superior courts from issuing orders or providing relief inconsistent 
with the requested injunction.” 84  This logic is inconsistent with the narrowness of this 
Younger category.  Every federal action challenging the constitutionality of a state law or 
 
 80  Cook v. Harding, 879 F.3d 1035, 1041 (9th Cir. 2018).   
 81  ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) 
(citations omitted).  
 82  New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 
(1989).  
 83  Docket 23 at 29. 
 84  Id. at 29–30.  
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state action has an incidental effect on state courts to the extent the state courts must comply 
with the federal court’s ruling.85  If hypothetical inconsistent rulings, or the possible need 
to oversee a state court ’s compliance with a federal order , landed cases in this Younger 
category, abstention would be the norm rather than the exception.  The Ninth Circuit 
rejected an argument similar to Defendants’ argument in Cook v. Harding, 879 F.3d 1035, 
1041 (9th Cir. 2018) , where the defendants there argued that “challenges to parentage 
determinations could impede the state courts’ ability to make other decisions based on that 
parental status, such as custody and child support.”  The Ninth Circuit declined defendants’ 
invitation to broaden the third  Younger category, stating that “[t] his is an a rgument 
regarding the state courts’ power to apply its laws in subsequent proceedings and the state’s 
interest in its interrelated family laws.  It does not relate to the state courts’ ability to enforce 
compliance with judgments already made.”86   
(c) Younger conclusion 
  This case does not fit into either of the two civil Younger categories, therefore 
the Court need not address the Middlesex factors.87  The Court declines to abstain under 
Younger.   
 
 85  See Jonathan R. by Dixon v. Justice, 41 F.4th 316, 331 (4th Cir. 2022) (“West Virginia 
points to no specific pending contempt orders this suit would undermine; it argues only that federal 
jurisdiction here would undermine the state courts ’ ‘ability’ to issue them.  But if that sufficed to 
cram state-court proceedings into Younger’s third category, we would be hard pressed to find an 
order that would not do.”).  
 86  Cook v. Harding, 879 F.3d 1035, 1041 (9th Cir. 2018). 
 87  Cook, 879 F.3d at  1039; see also ReadyLink , 754 F.3d at  759 (“Sprint . . . squarely 
h[eld] that Younger abstention is limited to the ‘three exceptional categories’ of cases identified in 
[NOPSI].” (citation omitted)); Jonathan R., 41 F.4th 316 at 332 (“After Sprint, we believe it is 
enough that the quarterly foster -care hearings lie outside the three ‘exceptional categories ’ the 
Court identified—Younger  abstention is ‘the exception, not the rule.’” (citation omitted)).  
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The Court makes two additional notes  regarding Younger abstention, 
federalism, and comity.  First, the Court is not persuaded by Defendants that CINA courts 
provide an adequate forum for Plaintiffs to seek the  relief requested in this suit.   The 
ongoing hearings in CINA cases are concerned with a particular child’s immediate needs 
and circumstances.88  None of the Plaintiffs challenge their current placements or current 
services in this suit.  Rather, they seek systemic reform of OCS so that their problems —
for example, being shuffled from placement to placement ––do not persist.  As the Fourth 
Circuit observed, “[r]eforming foster care case-by-case would be like patching up holes in 
a sinking ship by tearing off the floorboards.”89   
  Second, any prospective  relief from a federal court  “does not asperse the 
‘competency’ of state courts to conduct periodic individual foster -care hearings or to 
independently correct any structural problems state courts themselves identify.” 90  This 
Court is acutely aware that cases seeking systemic reform of a state agency  implicates the 
sensitive task of “managing the competing requirements of federal jurisdiction and state 
sovereignty.”91  
 
 88  Tinsley v. McKay , 156 F. Supp. 3d 1024, 1041  n.10 (“everything about dependency 
proceedings is tailored to the specific facts and circumstances of a particular child’s life.  Nothing 
in the statutes governing the authority or procedures of the juvenile court envisions or authorizes 
the court’s adjudication of class action cases.”).  
 89  Jonathan R., 41 F.4th at 336, cert. denied sub nom. Justice v. Jonathan R., 214 L. Ed. 
2d 137, 143 S. Ct. 310 (2022). 
 90  Id. at 339. 
 91  Tinsley, 156 F. Supp. 3d at 1044. 
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(2) O’Shea abstention 
  Next, Defendants argue that, even if this case does not fit into any of the 
Younger categories, this Court must still abstain under O ’Shea v. Littleton, 414 U.S. 488, 
500 (1974) .  O’Shea instructs federal courts to abstain “where the plaintiff seeks an 
‘ongoing federal audit’ of the state judiciary, whether in criminal proceedings or in other 
respects.”92  O ’Shea stands for the “general proposition that courts ‘should be very 
reluctant to grant relief that would entail heavy federal interference in such sensitive state 
activities as administration of the judicial system. ’”93  After surveying cases applying 
O’Shea, the Ninth Circuit summarized its reach:  “O’Shea abstention is inappropriate 
where the requested relief may be achieved without an ongoing intrusion into the s tate’s 
administration of justice, but is appropriate where the relief sought would require the 
federal court to monitor the substance of individual cases on an ongoing basis to administer 
its judgment.”
94   
  Courts within the Ninth Circuit have considered O’Shea abstention in the 
context of foster care class actions in Tinsley v. McKay , 156 F. Supp. 3d 1024, 1032 
(D. Ariz. 2015) , and Wyatt B. by McAllister v. Brown , No. 6:19- CV-00556-AA, 2021 
WL 4434011, at *6 (D. Or. Sept. 27, 2021).  Both courts concluded that O’Shea abstention 
was inappropriate.  Given the factual parallels, this Court finds those cases persuasive and 
similarly concludes that O ’Shea abstention is inappropriate here.   As in Tinsley and 
 
 92  Courthouse News Serv. v. Planet , 750 F.3d 776, 790 (9th Cir. 2014) (quoting E.T. v. 
Cantil-Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2011) (per curiam)).  
 93  Id. at 789–90 (quoting L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)).  
 94  Id. at 790.  
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Wyatt B, Plaintiffs’ requested relief is directed at OCS, not the state judiciary.95  Similar to 
the child welfare systems in Arizona and Oregon, state courts are indisputably intimately 
involved in child welfare proceedings in Alaska ; however, the specific relief sought here 
is targete d directly at the administration  and functioning of OCS. 96  This feature 
distinguishes this case from th e majority of cases in which O’Shea is applied , which 
involved plaintiffs who requested federal court oversight of state courts ’ operations and 
procedures.97   
  Defendants argue that Plaintiffs’ requested relief, although directed at OCS, 
would in effect “control future decisions made by superior courts” and place this Court in 
the position of having to review “the hundreds of placement decisions issued annually by 
superior courts ” to ensure compliance with a federal injunction. 98  O ’Shea does not 
mandate abstention whenever litigants seek a federal injunction to reform the institutions 
 
 95  Tinsley, 156 F. Supp. 3d at 1026–27; Wyatt B., 2021 WL 4434011, at *1. 
 96  Compare Docket 16 at  91–94 (seeking an injunction requiring OCS to “maintain 
caseloads for each case worker providing direct supervision and planning for children at accepted 
professional standards” and to “conduct annual case record reviews of a statistically significant 
sample of children in Defendants’ custody to measure how likely children in Defendants’ custody 
are to receive timely permanence”) ; with Wyatt B. , 2021 WL 4434011, at *6 (“Although the 
Oregon juvenile courts have an important role in the child welfare system, significant aspects of 
that system, such as the specifics of a child’s placement or the planning and provision of services, 
are reserved to DHS . . . and Plaintiff’s claims are directed at those very aspects of the dependency 
process.”). 
 97  See, e.g., Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1270–72 (10th Cir. 
2002) (applying Younger and O’Shea to a challenge to a settlement agreement setting benchmarks 
for child welfare agency to remove itself from a state court ’s jurisdiction based on findings that 
the agreement would impact juvenile court proceedings in New Mexico and attorneys’ ability to 
present information to state courts); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 612 (8th Cir. 
2018) (seeking an injunction requiring defendants to “comply with numerous procedural 
requirements at future 48-hour hearings.”).  
 98  Docket 23 at 39; Docket 25 at 40 (sealed). 
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of state government, even if those injunctions have incidental effects on state courts; that 
logic “would justify abstention as a matter of course in almost any civil rights action .”99  
Further, the Court is not convinced that the requested relief requires the Court to delve into 
individual cases to monitor compliance with a federal injunction.  Defendants’ compliance 
with the injunctive relief in this case could be measured by statistics similar to those relied 
on by Plaintiffs in their Complaint.100  Moreover, that “some additional litigation may later 
arise to enforce an injunction does not itself justify abstaining from deciding a 
constitutional claim.”101  
(3) Traditional area of state authority 
  Defendants cite to J.B. v. Woodard, 997 F. 3d 714,  723 (7th Cir. 2021), for 
the proposition that federal courts s hould abstain if a  case “risks a serious federalism 
infringement” even if no recognized abstention doctrine  applies.  In J.B., the Seventh 
Circuit held that the adjudication of the plaintiff’s due process claims “ threaten[s] 
interference with and disruption of local family law proceedings —a robust area of law 
traditionally reserved for state and local government—to such a degree as  to all but compel 
the federal judiciary to stand down.”102  As applied here, this free-floating doctrine seems 
an inelegant end- run around the Supreme Court ’s restrictions on the applicability of  
Younger.  The Ninth Circuit has instructed that “federal courts cannot ignore Sprint’s strict 
 
 99  Courthouse News Serv., 750 F.3d at 792. 
100  See Docket 16 ¶¶ 4–5, 167, 172–173, 175, 184, 186 (citing statistics regarding OCS 
caseloads, employee turnover, visits, and number of placements per year for foster children, and 
rate of case planning).  
101  Courthouse News Serv., 750 F.3d at 792.   
102  J.B., 997 F.3d 714 at 723. 
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limitations on Younger  abstention simply because states have an undeniable interest in 
family law .”103  Additionally, because  “the law of domestic relations often has 
constitutional dimensions properly resolved by federal courts ,” federal courts “must 
enforce the mandated constraints on abstention so that such constitutional rights may be 
vindicated.”104  The Court therefore declines to reach outside of developed abstention 
doctrines and abstain solely because this suit implicates “an area of core state authority.”105 
(4) Rooker-Feldman abstention 
  Defendants argue that the Rooker -Feldman doctrine bars the Court from 
hearing Plaintiffs ’ claims based on their placements or services. 106  Rooker-Feldman 
applies when a federal suit constitutes a de facto appeal of a state court judgment, meaning 
that “the plaintiff in federal district court complains of a legal wrong allegedly committed 
by the state court, and seeks relief from the judgment of that court. ”107  T o determine 
whether an action functions as a de facto appeal, courts “ pay close attention to the relief 
sought by the federal -court plaintiff.”108  If the federal suit is a forbidden de f acto appeal 
of a state court judgment, court s analyze whether the issue in the federal suit is 
“‘inextricably intertwined’ with an issue resolved by the state court judicial decision.” 109  
If the federal suit is a de facto appeal and the federal and state issues are inextricably 
 
 103  Cook v. Harding, 879 F.3d 1035, 1040 (2018). 
104  Id.   
105  Docket 23 at 8; Docket 25 at 9 (sealed). 
106  Docket 23 at 41–42; Docket 25 at 42–43 (sealed).  
107  Cooper v. Ramos, 704 F.3d 772, 778 (9th Cir. 2012). 
108  Id. (quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003)).  
109  Noel v. Hall, 341 F.3d 1148, 1165 (9th Cir. 2003). 
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intertwined, the federal court lacks jurisdiction over the action .110  “On the other hand, 
where the federal plaintiff does not complain of a legal injury caused by a state court 
judgment, but rather of a legal injury caused by an adverse party, Rooker -Feldman does 
not bar jurisdiction.”111 
  Rooker-Feldman does not apply here because Plaintiffs do not assert legal 
error by a state court as their injury and do not ask this Court set aside any of the state 
courts decisions in their  CINA cases.  Defendants argue that, “to the extent Named 
Plaintiffs complain about placements, it necessarily requires the Court to review superior 
court orders and issues ‘inextricably intertwined’ with” Superior Court orders approving 
Plaintiffs’ placements.112  Even if Plaintiffs did not assert their federal claims in state court, 
Defendants contend that Rooker-Feldman bars this court “from hearing any claims based 
on allegations that the Name d Plaintiffs’ placements or services violated the Constitution 
or federal law, since those claims could have been raised in superior court.”113 
  This argument ignores the past two decades of Supreme Court and Ninth 
Circuit precedent indicating that the Rooker -Feldman doctrine is “confined to .  . . cases 
brought by state -court losers complaining of injuries caused by state -court judgments  
rendered before the district court proceedings commenced and inviting district court review 
and rejection of those judgments.”114  Further, the Ninth Circuit has emphasized that “only 
 
 110  Id. 
111  Id. at 1163.  
 112  Docket 23 at 42; Docket 25 at 43 (sealed). 
113  Docket 23 at 42; Docket 25 at 43 (sealed). 
114  Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (emphasis 
added); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004) (“Rooker-Feldman thus 
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when there is already a forbidden de facto appeal in federal court does the ‘ inextricably 
intertwined’ test come into play. ”115  Plaintiffs are not state -court losers ; they do not 
complain of injuries caused by state courts ; and they do not seek to undo any state -court 
judgments.  Rooker-Feldman is inapplicable.  
C. Rule 12(b)(1)—Standing  
  If Plaintiffs’ claims escape abstention, Defendants argue that Plaintiffs lack 
standing to bring those claims and that this action must be dismissed pursuant to Federal 
Rule of Procedure 12(b)(1).116  “Because standing . . . pertain[s] to federal courts’ subject 
matter jurisdiction,” it is “properly raised in a Rule 12(b)(1)  motion to dismiss.” 117  “A 
Rule 12(b)(1) jurisdictional attack may be facial or factual.” 118  “In a facial attack, the 
challenger asserts that the allegations contained in a complaint are insufficient on their face 
to invoke federal jurisdiction.  By contrast, in a factual attack, the challenger disputes the 
truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”119  
Here, Defendants launch a facial attack.  
  Article III of the United States Constitution “limits the jurisdiction of federal 
courts to ‘Cases’ and ‘Controversies.’”120  “For there to be a case or controversy under 
Article III, the plaintiff must have a ‘ personal stake ’ in the case —i n other words, 
 
applies only when the federal plaintiff both asserts as her injury legal error or errors by the state 
court and seeks as her remedy relief from the state court judgment.”). 
115  Cooper, 704 F.3d at 778 (quoting Noel, 341 F.3d at 1165). 
 116  Docket 23 at 44–52; Docket 25 at 44–53 (sealed). 
117  Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 
118  Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 
119  Id. 
120  Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). 
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standing.”121  A s the party invoking federal jurisdiction, the plaintiff has the burden of 
proving that the following elements of standing are met:  (1) they “suffered an injury in 
fact that is concrete, particularized, and actual or imminent” ; ( 2) the “injury was likely 
caused by the defendant ”; and ( 3) the “injury would likely be redressed by judicial 
relief.”122  “Each element must be supported . . . with the manner and degree of evidence 
required at the successive stages of the litigation. ”123  “ At the pleading stage, general 
factual allegations of injury resulting from the defendant ’s conduct may suffice ”124 
because, “[f]or purposes of ruling on a motion to dismiss for want of standing, both the 
trial and reviewing courts must accept as true all material allegations of the complaint and 
must construe the complaint in favor of the complaining party.”125   
  Defendants’ standing argument begins with a flawed premise.  Defendants 
assert that each of the fourteen Named Plaintiffs must establish standing for this action to 
proceed.126  Under Ninth Circuit law,  only one of the named plaintiffs in a class action 
seeking injunctive relief “need demonstrate standing to satisfy Article III.”127  “[O]nce the 
 
121  TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). 
122  Id. 
123  Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). 
124  Id.  
125  Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). 
126   Docket 38 at 16–17.  Defendants cite Barapind v. Gov ’t of Republic of India, 50 F. 
Supp. 3d 1388, 1391 (E.D. Cal. 2014), aff’d, 844 F.3d 824 (9th Cir. 2016), for this proposition.  
Barapind does not support Defendants’ argument that each of the Named Plaintiffs must establish 
standing in a putative class action; rather, it states the unremarkable rule that plaintiff’s burden at 
the pleading stage “must be met by pleading sufficient allegations to show a proper basis for the 
court to assert subject matter jurisdiction over the action.”  Id.  
127  Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 682 
n.32 (9th Cir. 2022); see also Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 865 (9th 
Cir. 2014); Horne v. Flores, 557 U.S. 433, 445 (2009); Bates v. United Parcel Serv., Inc., 511 F.3d 
974, 985 (9th Cir. 2007) (en banc).   
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named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry 
is concluded and the court proceeds to consider whether the Rule 23(a)  prerequisites for 
class certification have been met.”128  Courts within this Circuit routinely apply this rule at 
the pre-certification motion to dismiss stage.129  Therefore, the fact that Plaintiffs did not 
address each Named Plaintiff for each element of standing is not the fatal blow that 
Defendants suggest.  
(1) Injury-in-fact 
  In cases involving requests for prospective injunctive relief, a plaintiff must 
demonstrate that “he has suffered or is threatened with a ‘concrete and particularized’ legal 
harm, coupled with ‘a sufficient likelihood that he will again be wronged in a similar 
way.’”130  A plaintiff must establish a “real and immediate” threat of injury.131  Past wrongs 
 
128  B.K. by next friend Tinsley v. Snyder , 922 F.3d 957, 967 (9th Cir. 2019) (citing 
Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015)). 
 129  In TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021), the Supreme Court held 
that “[e]very class member must have Article III standing in order to recover individual damages.”  
The Supreme Court reserved the question of “whether every class member must demonstrate 
standing before a court certifies a class.”  Id. at 2208 n.4 .  When interpreting TransUnion , the 
Ninth Circuit clarified that the law of the Circuit remains that,  when a class seeks injunctive or 
equitable relief, only one plaintiff need demonstrate standing.  Olean Wholesale Grocery Coop., 
Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 682 n.32 (9th Cir. 2022).  Courts within the Ninth 
Circuit have applied this rule at the motion to  dismiss stage, before a class is certified.  See , e.g., 
Rutter v. Apple Inc., No. 21-CV-04077-HSG, 2022 WL 1443336, at *4 (N.D. Cal. May 6, 2022) ; 
Fernandez v. CoreLogic Credco, LLC., 593 F. Supp. 3d 974, 983 (S.D. Cal. 2022); Mendoza v. 
Electrolux Home Prod., Inc ., No. 1:20-CV-01133-DAD-BAM, 2022 WL 4082200, at *6 (E.D. 
Cal. Sept. 6, 2022); I.C. v. Zynga, Inc., 600 F. Supp. 3d 1034, 1046 (N.D. Cal. 2022). 
130  Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal citation  
omitted). 
131  City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). 
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“are evidence bearing on whether there is a real threat of repeated injury,” but they do not 
“in themselves amount to a real and immediate threat of injury.”132   
  Defendants a rgue that Plaintiffs’ allegations consist wholly of past harms 
with no showing that those harms will be repeated.  Defendants cite City of Los Angeles v. 
Lyons, 461 U.S. 95, 105 (1983) , and Ashley W. v. Holcomb, 34 F.4th 588, 593 (7th Cir. 
2022), to argue that Plaintiffs have alleged mere exposure to past illegal conduct, which is 
insufficient to establish standing for injunctive relief. 133  Both cases are inapposite.  In 
Lyons, the Supreme Court found that a plaintiff who had been placed in a chokehold by 
Los Angeles police officers and sued the city seeking injunctive relief barring the use of 
chokeholds did not have standing because he had not established that he was likely to again 
be stopped by police and placed in a chokehold, especially when the City had not “ordered 
or authorized” police officers to place people in chokeholds.
134  Here, unlike the plaintiff 
in Lyons, Plaintiffs remain in OCS custody and therefore are wholl y subject to the 
conditions of that office.135  The injuries alleged by the Named Plaintiffs are also connected 
to the practices of OCS.136 
  In Ashley W., the Seventh Circuit found a lack of standing where “[m]uch of 
the relief proposed by plaintiffs ’ complaint and briefs concerns how child- welfare 
 
132  Bates, 511 F.3d at 985 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). 
133  Docket 23 at 44–45; Docket 25 at 45–46 (sealed).  
134  Lyons, 461 U.S. at 105–06.  
135  See id. 
136  See 31 F oster Child. v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003) (“As Lyons 
illustrates, future injury that depends on either the random or unauthorized acts of a third party is 
too speculative to satisfy standing requirements.  However, when the threatened acts that will cause 
injury are authorized or part of a policy, it is significantly more like ly that the injury will occur 
again.”). 
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investigations are handled and before [child welfare] proceedings begin.” 137  S ince the 
named plaintiffs were already in child welfare proceedings when the case began, the 
Seventh Circuit noted that “they do not have any current interest in how pre -litigation 
investigations are conducted.” 138  Here, only three of the requested eighteen injunctions 
relate to the time period when a child enters foster care, and each is aimed at stemming an 
ongoing injury identified in the Complaint.  For example, request for relief  at 
paragraph “IV.e” seeks a requirement that “Defendants ensure all children who enter foster 
care placement receive within 30 days of entering care a comprehensive  evaluation of the 
child’s needs, . . . and that the child be reevaluated as the child’s needs and the information 
available to the Defendants change.”139   
  Plaintiffs have adequately alleged they are suffering a continuing injury or 
are under imminent threat of future injury.  Each Named Plaintiff is in OCS custody and 
therefore “cannot avoid exposure to the defendants ’ challenged conduct.” 140  Th e 
challenged conduct, if true,  exposes them to a real and immediate threat of injury.  For 
example, the Complaint alleges the Mary B. and Connor B.  have experienced placement 
instability during their time in OCS and “remain subject to shifting custodial situations and 
are at risk of being moved again.”141  The Complaint alleges that Mary B., a member of the 
 
 137  Ashley W. v. Holcomb, 34 F.4th 588, 593 (7th Cir. 2022). 
138  Id. (citations omitted). 
139  Docket 16 at 91 (emphasis added).  
140  31 Foster Child., 329 F.3d at 1266; see also Connor B. ex rel. Vigurs v. Patrick, 771 F. 
Supp. 2d 142, 153 (D. Mass. 2011) (“Given that Plaintiffs remain in DCF custody and have not 
been placed in permanent homes, they may fairly argue that they suffer ongoing harm resulting 
from the alleged systemic failures within DCF.”). 
141  Docket 16 ¶ 73.  
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proposed Kinship Subclass, was removed from the custody of her grandmother in part 
because OCS did not provide her with necessary financial support, and is now placed with 
her uncle, who is also not receiving financial support, increasing the likelihood of another 
disrupted placement .142  OCS allegedly promised to place Connor B ., a member of the 
proposed ICWA subclass, with his grandmother but never did so, leaving Connor B. in a 
non-Indian foster home.143  David V., George V., Lawrence V., Karen V., and Damien V. 
have been moved “40 times in the span of slightly over a year” 144 largely because foster 
parents were “provided with no information about the children’s behavioral and physical 
issues”145 leading to a “deterioration of the children ’s behavior and mental state.” 146  
David V. and George V., members of the proposed ADA Subclass, have not received any 
mental health services or medications  while in OCS custody , and George V. has been 
placed in inappropriately restrictive placements due to lack of appropriate foster homes.147   
  The Complaint attributes these past and current injuries to OCS ’s systemic 
deficiencies, including unmanageable caseloads, understaffing, and failure to engage in 
permanency planning.148  The persistent deficiencies identified in the Complaint present a 
threat of repeated injuries connected to those deficiencies.  Courts analyzing similar foster 
care class actions have arrived at the same result. 149  In B.K. by next friend Tinsley v. 
 
142  Id. ¶¶ 63–66. 
143  Id. ¶ 71. 
144  Id. ¶ 78. 
145  Id. ¶ 100. 
146  Id. ¶ 78. 
147  Id. ¶¶ 83, 86–89, 91. 
148  See id. ¶¶ 73, 77, 81, 110. 
149  31 Foster Child., 329 F.3d at 1266; Connor B. ex rel. Vigurs, 771 F. Supp. 2d at 153; 
Clark K. v. Guinn, Civ. No. 2:06– cv–1068, 2007 WL 1435428, at *5 (D. Nev. May 14, 2007); 
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Snyder, 922 F.3d 957, 967 (9th Cir. 2019) , the Ninth Circuit found that evidence that the 
plaintiff had “not rece ived adequate medical care or appropriate placements in the past ,” 
coupled with evidence that “statewide policies and practices expose her to a risk of similar 
future harms ” and that she  “faces a risk of harm from DCS policies and practices that 
inadequately provide for children who do not have available kinship placements ,”150 was 
sufficient to establish  the named plaintiff ’s standing.   As such, the Court finds that 
Plaintiffs meet the injury-in-fact element of standing. 
(2) Causation 
  To satisfy the causality element of standing, “ Plaintiffs must show that the 
injury is causally linked or ‘fairly traceable’ to [Defendants’] misconduct, and not the result 
of misconduct of some third party not before the Court.” 151  Defendants assert that the 
Complaint is devoid of allegations “linking OCS ’s alleged historical problems to the 
circumstances of the Named Plaintiffs themselves.” 152  Defendants also assert that the 
causal link between OCS’s conduct and Plaintiffs’ injuries is too attenuated because it rests 
upon the independent decisions of third-party actors.153   
  The Complaint  adequately alleges a causal connection between  Plaintiffs’ 
injuries to OCS’s conduct.  For example, the Complaint states that OCS failed to properly 
support, supervise , or educate Lawrence V., David V. and George V. ’s previous foster 
 
Dwayne B. v. Granholm , Civ. No. 06–13548, 2007 WL 1140920, at *3–4 (E.D. Mich. April 17, 
2007); see Carson P. v. Heineman, 240 F.R.D. 456, 512–13 (D. Neb. 2007). 
150  B.K. by next friend Tinsley, 922 F.3d at 972. 
151  Washington Env’t Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013). 
152  Docket 23 at 48; Docket 25 at 49 (sealed).  
153  Docket 23 at 47; Docket 25 at 48 (sealed).  
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homes, leading to disrupted placements because the foster homes we re unable to support 
the children ’s emotional and behavioral needs. 154  The Complaint alleges that Rachel  T. 
and Eleanor T. have met with their caseworkers “four to five times and have provided little 
to no support to t he children in obtaining required services”  due to caseworker turnover 
and unmanageable caseloads. 155  This is not a case where Plaintiffs’ asserted injur ies 
“arise[] from the government ’s allegedly unlawful regulation (or lack of regulation) of 
someone else ”156 and therefore causation and redressability hinge on “ the unfettered 
choices made by independent actors not before the courts and whose exercise of broad and 
legitimate discretion the courts cannot presume either to control or predict.” 157  The party 
whose conduct is challenged—OCS —is before the Court , and its compliance with any 
relief in this case does not depend on absent third parties.  In B.K., the Ninth Circuit found 
that a named plaintiff ’s constitutional injuries were fairly traceable to the conduct of the 
Arizona Department of Child Safety  because, “[i]f state officials failed and continued to 
fail to provide [plaintiff] ‘reasonable safety and minimally adequate care . . .’ through the 
deficient statewide policies and practices she alleges, the harm to her will have been caused 
by those officials.”158  Plaintiffs have sufficiently pled injuries that are fairly traceable to 
Defendants’ misconduct. 
 
154  Docket 16 ¶¶ 81–82, 87, 95–96. 
155  Id. ¶¶ 109–10.  
156  Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992). 
157  Id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)).  
158  B.K. by next friend Tinsley, 922 F.3d at 967.  
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(3) Redressability 
  “Redressability is satisfied so long as the requested remedy ‘would amount 
to a significant increase in the likelihood that the plaintiff would obtain relief that directly 
redresses the injury suffered.’”159  Defendants claim that Plaintiffs’ requests for relief relate 
to grievances that can be raised in Plaintiffs ’ CINA cases, is divorced from Plaintiffs ’ 
individual injuries.160  These arguments rest on Defendants’ misunderstanding of the nature 
of the injuries of which Plaintiffs complain.  Defendants direct Plaintiffs to CINA courts 
to address their individual placements and services .  But Plaintiffs do not seek changes to 
their individual placements and services through this lawsuit.  They seek systemic relief 
from injuries resulting from s ystemic flaws.  Instructing Plaintiffs to secure change by 
challenging OCS’s placement decision in their individual case is a Sisyphean task that will 
not relieve Plaintiffs from their injuries —the constant placement disruptions, the lack of 
access to services, the lack of case planning.  If a CINA court orders OCS to come up with 
a different  placement for a Plaintiff or to provide that Plaintiff particular services, the  
injures complained of here remain.  By contrast, the relief requested here —such as  
requiring OCS to provide services to all children  whose case plan s identify a need for 
services, manage caseloads at a certain level, and conduct annual case record reviews “to 
measure how likely  children in Defendants ’ custody are to receive timely 
permanence”161—is  likely to redress Plaintiffs injuries.  
 
159  Mecinas v. Hobbs, 30 F.4th 890, 900 (9th Cir. 2022). 
160  See Docket 23 at 49–50; Docket 25 at 50–51 (sealed).   
 161  Docket 16 at 90 ¶ IV. 
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  Defendants also suggest that Plaintiffs’ requested relief amounts to “ordering 
the state to come up with more money. ”162  According to Defendants, the problems 
Plaintiffs allege boil down to a lack of resources , and federal courts should not be the 
arbiters of state agency resource allocation. 163  Cases involving the allocation of state 
resources “raise sensitive federalism concerns, which are heightened when  . . . a federal-
court decree has the effect of dictating state or local budget priorities .”164  Still, these 
concerns must be balanced with the fact that “federal courts must vigilantly enforce federal 
law and must not hesitate in awarding necessary relief.”165  The Court cannot abdicate this 
duty because compliance with the Constitution may be expensive. 
  It is also worth noting that  institutional reform injunctions must be aimed 
only at eliminating conditions that violate federal law, ensuring that “responsibility for 
discharging the State ’s obligations is returned promptly to the State and its officials.” 166  
Nor is the requested relief novel.  In M.D. by Stukenberg v. Abbott, 907 F.3d 237, 273–76 
(5th Cir. 2018) , the Fifth Circuit affirmed portions of  a district court’s injunction that 
ordered child welfare agencies to comply with a litany of mandates, including to  report 
their caseloads, “ensure statewide implementation of graduated caseloads” for new hires, 
and inform a child’s caregivers of confirmed allegations of sexual abuse at each present 
 
162  Docket 23 at 51; Docket 25 at 52 (sealed) (emphasis omitted) (quoting Ashley W., 34 
F.4th at 593–94). 
163  Docket 38 at 21.  
164  Horne v. Flores, 557 U.S. 433, 448 (2009). 
165  Id. at 450.   
166  Id.  
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and subsequent placement. 167  Plaintiffs ’ requested relief is not fundamentally different 
from the relief granted in M.D. by Stuckenberg , so there is precedent for what th is Court 
could order to redress Plaintiffs’ injuries. 
 In sum, the placement instability and lack of adequate support services that 
Plaintiffs have alleged are concrete and particularized injuries -in-fact caused by OCS ’s 
systemic challenges, namely its unmanageable caseloads, understaffing, and failure to 
engagement in proper planning and reporting.  An order from this Court likely could  
redress these injuries by requiring systematic  improvements, such as new systems for 
providing placements  and services, enhanced and transparent reporting, better caseload 
management practices, and a requirement to conduct regular case record reviews.  Plaintiffs 
have established standing to bring their claims in federal court, and as such Defendants ’ 
Motion to Dismiss for Lack of Standing is DENIED.  
D. Rule 65—Injunctive Relief  
  Defendants claim they are entitled to dismissal because certain requests for 
an injunction “violate” Federal Rule of Civil Procedure 65 .168  Rule 65(d) provides that 
“[e]very order granting an injunction  . . . must state the reasons why it issued; state its 
terms specifically; and describe in reasonable detail—and not by referring to the complaint 
or other document —the act or acts restrained or required.”  By its plain terms, Rule  65 
governs the scope and content of court orders granting an injunction; it does not impose a 
 
167  The Fifth Circuit honed the injunction ordered by the district court to ensure that it was 
not “too blunt a remedy for a complex problem.”  M.D. by Stukenberg v. Abbott , 907 F.3d 237, 
274 (5th Cir. 2018).  
168  Docket 23 at 53–55; Docket 25 at 54–56 (sealed). 
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heightened pleading standard on Plaintiffs seeking an injunction.   Even at the class 
certification stage, Plaintiffs need only describe the “general contours of an injunction that 
would provide relief to the whole class, that is more specific than a bare injunction to follow 
the law, and that can be given greater substa nce and specificity at an appropriate stage in 
the litigation through fact- finding, negotiations, and expert testimony.”169  Plaintiffs have 
done so here by detailing  17 specific actions they request this Court order Defendants to 
undertake an done action they request the Court order Defendants to cease taking.170  These 
actions range from requiring Defendants to maintain caseloads for each case worker, recruit 
and retain enough qualified and trained case workers, and place children in safe  and 
appropriate environments that are least restrictive to the children ’s needs, among many 
other requests. 171  This is not a case where there is no conceivable way the Court could 
fashion the requested relief in a way that  meets the specificity requirements of Rule 65(d) 
or the injunction requests simply that Defendants follow the law.172  Therefore, Rule 65(d) 
does not provide a basis for dismissal at this stage in the litigation.  Defendants’ request to 
dismiss “a,” “b,” “p,” and “q” of Plaintiffs’ relief is DENIED. 
 
169  B.K. by next friend T insley v. Snyder , 922 F.3d 957, 972 (9th Cir. 2019) (quoting 
Parsons v. Ryan, 754 F.3d 657, 689 n.35 (9th Cir. 2014)). 
 170  Docket 16 at 90 ¶ IV. 
 171  Id. at 91 ¶¶ IV.a–c. 
172  See Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 631 (5th Cir. 2018)  (collecting 
cases finding that Rule 65(d) usually does not justify dismissal of a complaint but noting that “[t]o 
the extent Rule 65(d) can theoretically justify a pleading-stage dismissal, moreover, we expect that 
it can do so only if there is no conceivable way to frame the requested relief in adequately specific 
terms.”).  
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E. Rule 12(b)(6)— Failure to State a Claim 
  Defendants seek dismissal of Counts One, Two, Four, Five, Six,  and Seven 
under Rule 12(b)(6) for failure to state a claim.173  A complaint will survive a Rule 12(b)(6) 
motion to dismiss if it contains “sufficient factual matter . . . to ‘state a claim to relief that 
is plausible on its face. ’”174  A claim is plausible on its face “when the plaintiff pleads 
factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”175  If the facts alleged in the complaint do not support a 
reasonable inference of liability, stronger than a mere possibility, the claim must be 
dismissed.176  Courts assessing a Rule 12(b)(6) motion accept as true all factual allegations 
alleged in the complaint and construe the pleadings in the light most favorable to the 
plaintiff.177  Courts  need not, however, accept as true “allegations that are merely 
conclusory, unwarranted deductions of fact, or unreasonable inferences.”178   
(1) Claim One—substantive due process  
Claim One asserts that Defendants have violated Plaintiffs’ substantive due 
process rights conferred by the Fourteenth Amendment.179  The Due Process Clause of the 
Fourteenth Amendment “generally confer[s] no affirmative right to governmental aid, even 
where such aid may be necessary to secure life , liberty, or property interests of which the 
 
 173  Docket 25 at 55–75, 56–76 (sealed). 
 174  Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 
550 U.S. 544, 570 (2007)). 
 175  Id.  
 176  Id.  
 177  E.g., Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).  
 178  In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 
 179  Docket 16 ¶¶ 264–69. 
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government itself may not deprive the individual.”180  There are two exceptions to this rule:  
the special relationship exception and the state-created danger exception.181 
The special relationship exception provides that  “when the State takes a 
person into its custody and holds him there against his will, the Constitution imposes upon 
it a corresponding duty to assume some responsibility for his safety and general well -
being.”182  This exception applies to children in foster care. 183  “Once the state assumes 
wardship of a child, the state owes the child, as part of that person’ s protected liberty 
interest, reasonable safety and minimally adequate care and treatment appropriate to the 
age and circumstances of the child.”184  To determine whether a foster child’s substantive 
due process rights have been violated, courts apply the “deliberate indifference” standard, 
which requires “(1) a showing of an objectively substantial risk of harm and (2) a showing 
that the officials were subjectively aware of facts from which an inference could be drawn 
that a substantial risk of serious harm existed and (a)  the official actually drew that 
inference or (b)  . . . a reasonable official would have been compelled to draw that 
inference.”185 
 
180  DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).  
181  Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012).  
182  Id. at 1000–01.  
183  Id. at 1000. 
184  Id. (quoting Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992)).  
185  Id. (citing Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010)); 
see also Momox-Caselis v. Donohue, 987 F.3d 835, 845 (9th Cir. 2021).  Confusingly, Plaintiffs 
argue that this three-part deliberate indifference test was overturned in Castro v. County of Los 
Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016).  The fact that this test was cited with approval in a 
case five years after it was purportedly overturned is a strong indicator that Castro did not, in fact, 
overturn this test.  Further, Castro overturned an earlier case “to the extent that it identified a single 
deliberate indifference standard for all § 1983 claims and to the extent that it required a plaintiff 
to prove an individual defendant’s subjective intent to punish in the context of a pretrial detainee’s 
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To determine liability under the  state-created danger doctrine , courts ask  
(1) whether any affirmative actions of the official placed the individual in danger he 
otherwise would not have faced; (2)  whether the danger was known or obvious; and 
(3) whether the offic ial acted with deliberate indifference to that danger. 186  The Court 
analyzes these exceptions in unison below.187 
Plaintiffs contend Defendants violated their rights to ( a) freedom from the 
foreseeable risk of maltreatment while  under the p rotective supervision of the S tate; 
(b) protection from unnecessary intrusions into the child’ s emotional wellbeing once the 
State has established a special relationship with that child; (c) services necessary to prevent 
unreasonable risk of harm in the least restrictive environment; (d) conditions and duration 
of foster care reasonably related  to the purpose and assumption of government custody;  
(e) treatment and care consistent with the purpose and assumptions of government custody; 
(f) not to be mainta ined in custody longer than is necessary to  accomplish the purpose to 
be served by taking a child into government  custody; and (g) receive or be reunited with 
an appropriate permanent home and family within a reasonable period.188 
  Defendants argue that Claim One fails because Plaintiffs assert the violation 
of rights that are not constitutionally recognized and fail to allege sufficient facts to support 
their claims.189  Foster children have a constitutionally protected right to basic needs, such 
 
failure-to-protect claim.”  The three-party deliberate indifference test remains the viable test in the 
foster care context.  See B.K. by next friend Tinsley v. Snyder, 922 F.3d 957, 968 (9th Cir. 2019)  
(applying three-part test in foster care case).  
186  Henry A., 678 F.3d at 1002. 
187  Momox-Caselis, 987 F.3d at 845. 
188  Docket 16 ¶ 269.  
189  Docket 38 at 21.  
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as food clothing, shelter, medical care, and reasonable safety ; however, unfortunately, 
“[t]he Fourteenth Amendment does not entitle [foster children] to receive optimal treatment 
and services.”190  Surveying the relevant authorities, courts have found that rights similar 
to the rights alleged in  Paragraph 269, Subparagraphs ( a), (b), and (e) of Plaintiffs ’ 
Complaint, fall on the basic needs end of the spectrum.191  Regarding the rights alleged in 
Paragraph 269, Subparagraphs  (c), (d), and (f)  of Plaintiffs ’ Complaint, the weight of 
authority supports a finding that substantive due process does not encompass placement in 
the least-restrictive environment or being subject to either (1) conditions reasonably related 
to the purpose and assumption of government custody or (2)  durational limitations on the 
government custody.192  Finally, as to the right alleged in Paragraph 269, Subparagraph (g), 
 
190  M.D. by Stukenberg v. Abbott, 907 F.3d 237, 251 (5th Cir. 2018). 
191  Id. at 251 (“[E]gregious intrusions on a child’s emotional well-being . . . are 
constitutionally cognizable”); Jonathan R. v . Justice, No. 3:19-CV-00710, 2023 WL 184960, at 
*7 (S.D.W. Va. Jan. 13, 2023) (recognizing substantive due process rights to protection against 
maltreatment; “protection from unnecessary intrusions into the child’s emotional wellbeing while 
in State custody” ; and “treatment and care consistent wit h the purpose and assumptions of 
government custody.”); Wyatt B. by McAllister v. Brown , No. 6:19-CV -00556-AA, 2021 WL 
4434011, at *8 (D. Or. Sept. 27, 2021) (recognizing “the right to freedom from maltreatment while 
under the protective supervision of the state” and “[t]he right to freedom from bias -related 
violence, abuse and harassment while in state custody”). 
192  See M.D. by Stukenberg, 907 F.3d at 268; Wyatt B. by McAllister v. Brown, No. 6:19-
CV-00556-AA, 2021 WL 4434011, at *9 (D. Or. Sept. 27, 2021); T.F. by Keller v. Hennepin Cnty., 
No. CV 17-1826 (PAM/BRT), 2018 WL 940621, at *4 (D. Minn. Feb. 16, 2018); Clark K. v. 
Guinn, No. 2:06CV1068-RCJ-RJJ, 2007 WL 1435428, at *15 (D. Nev. May 14, 2007); Charlie 
H. v. Whitman, 83 F. Supp. 2d 476, 507 (D. N.J. 2000).  Jonathan R. is the recent outlier here.  
While the Jonathan R. court found that foster children did not have the right to services in the least 
restrictive setting , the c ourt did recognize the right to conditions and duration of foster care 
reasonably related to the purpose of government custody, and “the right not to be maintained in 
custody longer than is necessary to accomplish the purpose to be served by taking a child into 
government custody.”  2023 WL 184960, at *7.  The Jonathan R. court reasoned that “Plaintiffs 
are in Defendants ’ custody largely because they have been abused or neglected by their parents  
. . . [o]nce these conditions cease, so do the justifications for removal.”   Id.  At least in theory, 
those conditions should cease immediately upon removing the child from parental custody.  This 
Court finds that recognition of this right translates to guaranteeing optimal treatment and services, 
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Plaintiffs do not cite to any cases that recognize a substantive due process right to receive 
or be reunited with permanent home and family within a reasonable period.193  While that 
purported right assuredly captures society’s most fervent hopes for children entering foster 
care, t his elevated durational limitation extends much beyond what the courts have 
recognized as basic needs.   
  With respect to the rights alleged in Paragraph 269, Subparagraphs (a), (b), 
and (e), the Court finds that Plaintiffs have plausibly alleged deliberate indifference in 
relation to those rights.  Plaintiffs allege that OCS was aware that David V. and Damien V. 
were subjected to physical and verbal abuse in their respective  foster homes but did not 
transfer the children out of those placeme nts.194  Plaintiffs also allege that Jeremiah  M., 
Hannah M., and Hunter M.  are placed in a home that is visited by a sex offender and, 
despite the children’s tribe’s requesting that the children be moved to another foster home, 
OCS “failed to move the children or ensure their safety.”195  The Complaint also includes 
multiple allegations that Plaintiffs are not receiving medical or behavioral services, despite 
OCS’s knowledge of their need for those services , and that OCS fails to notify foster 
parents of children ’s medical and behavioral needs.196  These allegations, when taken as 
true, plausibly allege that OCS violated Plaintiffs ’ substantive due process rights.  
Defendants’ Motion to Dismiss  as to Claim One is thus GRANTED  with respect to the 
 
which as noted above is not a right that the  Fourteenth Amendment guarantees , at least under 
existing caselaw. 
193  Docket 36-2 at 69.  Neither of Plaintiffs ’ case citations address the right to receive or 
be reunited with an appropriate permanent home.  Id. at 69 n.83. 
194  Docket 16 ¶¶ 81, 99.  
195  Id. ¶ 55. 
196  Id. ¶¶ 82–83, 87, 91, 96–97, 104, 107, 139. 
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rights asserted in  Paragraph 269, Subparagraphs (c), (d), (f), and (g);  and DENIED with 
respect to the rights asserted in Paragraph 269, Subparagraphs (a), (b), and (e).  
(2) Claim Two—right to famil ial association 
  In Claim Two, Plaintiffs allege that OCS fails to take “all reasonable efforts 
toward fostering familia l association and securing a permanent home and family for the 
named Plaintiffs”197 in “violation of the First Amendment’s right of association, the Ninth 
Amendment’s r eservation of rights to the people, and the Fourteenth Amendment ’s 
substantive due process protections .”198  The Supreme Court has recognized that the 
freedom of association “afford[s] the formation and preservation of certain kinds of highly 
personal relationships a substantial measure of sanctuary from unjustified interference by 
the State.”199  The Supreme Court has also recognized that “[t]he integrity of the family 
unit has found protection” in the Fourteenth and Ninth Amendments,200 though the “precise 
boundaries of this type of constitutional protection” remain somewhat elusive.201  
  Plaintiffs assert that “when the state involuntarily removes children from a 
family unit and/or separates siblings, the state assumes an affirmative obligation to restore 
the family unit to its condition prior to state interference.”
202  Courts have consistently held 
that the right to familial association is a negative right —t he right  to be fre e from  
 
197  Docket 16 ¶ 275. 
198  Id. ¶ 276.  
199  Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). 
200  Stanley v. Illinois, 405 U.S. 645, 651 (1972). 
201  Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987).  
202  Docket 36-2 at 76.  
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unwarranted or unjustified state interference in  certain existing intimate relationships.203  
Plaintiffs attempt to transform this negative right into a broad affirmative  right to restore 
the foster children’s pre-custody family unit.204  But Plaintiffs only weakly provide non-
binding support for a finding that the state has an affirmative constitutional family building 
obligation.205  In fact, courts have consistently been unwilling to place constitutional 
obligations on the state  to build, rebuild, or preserve families.206  Further, this purported 
right is incompatible with the facts alleged in this case.  As with many constitutional rights, 
the right to familial association free from state interference is not absolute. 207  “U nder 
certain circumstances, these rights must bow to other countervailing interests and rights, 
such as the basic independent life and li berty rights of the child and of the State acting as 
parens patriae .”208  None of the Named Plaintiffs claim that their removal from their 
parents’ custody constituted unwarranted state interference into their relationship with their 
parents.  These removals primarily occurred in the context of allegations of child abuse and 
 
203  M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Rotary Int’l, 481 U.S. at 545; Keates v. 
Koile, 883 F.3d 1228, 1236 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 
2001). 
204  Docket 36-2 at 76.   
205  Id. at 75–76. 
206  See Mullins v. State of Or ., 57 F.3d 789, 794 (9th Cir. 1995) (“A negative right to be 
free of governmental interference in an already existing familial relationship does not translate into 
an affirmative right to create an entirely new family unit out of whole cloth.”); Marisol A. by 
Forbes v. Giuliani, 929 F. Supp. 662, 676 (S.D.N.Y. 1996) (rejecting challenge to state’s alleged 
“general failure to provide services that function to preserve the family unit” pursuant to the First, 
Ninth, and Fourteenth Amendments, “even if that agency has a statutory duty to do so.”), aff’d sub 
nom. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997). 
207  Mueller v. Auker, 700 F.3d 1180, 1186 (9th Cir. 2012).  
208  Id. 
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neglect.  Thus, the condition of the family unit prior to state interference was the  very 
danger that warranted state interference. 
  Plaintiffs instead allege that, while in state custody, their relationships with 
their parents, siblings, and grandparents “are systematically and improperly intruded upon 
by Defendants’ policies and practices.”209  Plaintiffs cite as examples Defendants’ practices 
of placing children in institutions, shuffling children through foster placements, and failing 
to arrange for visitation between separated siblings and parents. 210  Plaintiffs claim they 
have adequately ple aded violations of familial association with respect to Plaintiffs ’ 
parents, siblings, and grandparents. 211  The “constitutional interest in familial 
companionship and society logically extends to protect children from unwarranted state 
interference with their relationships with their parents.”212  Courts applying this concept in 
the foster care context center the inquiry on whether foster children are denied meaningful 
contact with their parents. 213  The Court finds that distance or failure to “facilitate” 
visitation do not, without more,  amount to unwarranted state interference in the child -
parent relationship.214   
However, the Complaint contains allegations that describe a denial or 
limitation of Plaintiffs ’ visitation.  For example, the Complaint states that OCS only 
permitted the V. ch ildren to see their mother on Zoom for one hour a week until, in 
 
209  Docket 36-2 at 73.  
210  Id. at 73–74.  
211  Id. at 75. 
212  Lee, 250 F.3d at 685.  
213  Connor B. ex rel. Vigurs v. Patrick , 985 F. Supp. 2d 129, 164  (D. Mass. 2013), aff’d, 
774 F.3d 45 (1st Cir. 2014).  
214  Docket 16 ¶¶ 54, 56, 71. 
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April 2022, OCS said the children could only see their mother in therapeutic visitation. 215  
As OCS is aware, the backlog of therapeutic visitation providers means that the children 
will not b e able to see their mother in person for many months. 216  The Complaint also 
alleges that OCS would not let Gayle T .’s family regularly visit her in an adolescent 
inpatient mental health unit in 2020. 217  OCS then did not respond to requests from 
Gayle T.’s family to visit her at her next placement, a nonprofit mental health agency. 218  
These allegations plausibly state a claim for violation of the parent- child right of 
association.  
  Yet Plaintiffs fail to state a claim to relief for violation of familial association 
with regard to siblings and grandparents.  The Ninth Circuit has held that adult siblings do 
not possess a cognizable liberty interest to assert a loss of familial association claim under 
the Fourteenth Amendment. 219  In an unpublished opinion, the Ninth Circuit found that 
“[n]o viable loss -of-familial-association claim exists for siblings ” under the First 
Amendment and the Fourteenth Amendments, even with respect to child siblings who were 
raised together.220  Thus, Plaintiffs’ claim for loss of association with their siblings cannot 
survive. 
 
 215  Id. ¶ 77. 
216  Id.  
217  Id. ¶ 113. 
218  Id. ¶ 118. 
219  Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991). 
220  J.P. by and through V illanueva v. Cnty. of Alameda, 803 F. App’x 106, 109 (9th Cir. 
2020) (unpublished); see also Mann v. City of Sacramento, No. 21-15440, 2022 WL 2128906, at 
*1 (9th Cir. June 14, 2022) (unpublished) (finding that the First Amendment did not cover 
intimate-association claims brought by adult siblings); Olvera v. Cnty. of Sacramento, 932 F. Supp. 
2d 1123, 1148 (E.D. Cal. 2013).  
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  Courts also have found that grandparents have no liberty interest in familial 
association with their grandchildren “by virtue of genetic link alone,” but grandparents who 
have an existing “long- standing custodial relationship” with their grandchild may enjoy 
constitutional protection from interference with that relationship. 221  Here, the Court need 
not decide whether Plaintiffs have a cognizable liberty interest to familial association with 
their grandparents because the Complaint wholly fails to allege unwarranted state 
interference into the grandchild -grandparent relationship.  Two grandparents are 
mentioned in the Complaint.  The M. children were removed from a placement with their 
grandmother, Ms. S., due to an allegation of physical abuse. 222  Apart from faulting OCS 
for not providing details in their removal notice, the Complaint does not assert that this 
removal was unwarranted or unjustified.
223  The other grandmother, Ms. Y ., gave up 
custody of Mary B.224  While the Complaint asserts that OCS failed to help Ms. Y . obtain 
financial assistance, it does not assert that Mary B .’s removal from Ms. Y.’s custody was 
a product of state interference. 225  Thus, Plaintiffs’ loss of grandparent association claim 
fails. 
 
 221  Mullins v. State of Or., 57 F.3d 789, 794 (9th Cir. 1995); Moore v. City of E. Cleveland, 
Ohio, 431 U.S. 494, 505 (1977); Sanchez v. Cnty. of Santa Clara, No. 5:18-CV-01871-EJD, 2018 
WL 3956427, at *9 (N.D. Cal. Aug. 17, 2018)  ( declining to dismiss grandmother and step-
grandfather’s claims for violation of familial integrity and association); Osborne v. Cnty. of 
Riverside, 385 F. Supp. 2d 1048, 1054 (C.D. Cal. 2005)  (“[ G] randparents who have ‘a long-
standing custodial relationship’ with their grandchildren such that together they constitute an 
‘existing family unit’ do possess a liberty interest in familial integrity and association.”).   
222  Docket 16 ¶ 52. 
223  Id. ¶ 54.  
224  Id. ¶ 65. 
 225  Id. ¶ 62. 
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  Defendants’ Motion to D ismiss is GRANTED as to the portions of 
Claim Two containing Plaintiffs ’ claims for familial association with their grandparents 
and siblings and DENIED as to the portion of Claim Two containing Plaintiffs’ claims for 
familial association with their parents.  
(3) Claim Four—I ndian Child Welfare Act 
  Plaintiffs allege that Defendants have violated certain rights under 25 U.S.C. 
§ 1915 (“Section 1915”), a provision of the Indian Child Welfare Act (“ICWA”)  that 
Plaintiffs argue can be enforced through 42 U.S.C. § 1983. 226  ICWA established 
“minimum Federal standards for the removal of Indian children from their families and the 
placement of such children in foster or adoptive homes which will reflect the unique values 
of Indian culture.”227  Congress enacted ICWA in 1978 in response to a “rising concern . . . 
over the consequences to Indian children, Indian families, and Indian tribes of abusive child 
welfare practices that resulted in the separation of large numbers of Indian children from 
their families and tribes through adoption or foster care placement, usually in non- Indian 
homes.”
228  These abusive child welfare practices stemmed from states’ failures to 
 
226  Id. ¶¶ 281–91.  
227  25 U.S.C. § 1902.  ICWA defines “Indian child” as “any unmarried person who is under 
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an 
Indian tribe and is the biological child of a member of an Indian tribe.”  25 U.S.C. § 1903(4).  An 
“Indian tribe” refers to “any Indian tribe, band, nation or other organized group or community of 
Indians recognized as eligible for services provided to Indians by the Secretary . . . including any 
Alaska Native village as defined in section 1602(c) of Title 43.”  25 U.S.C.A. § 1903(8).  Finally, 
“Indian” is defined as “any person who is a member of an Indian tribe, or who is an Alaska Native 
and a member of a Regional Corporation as defined in section 1606 of Title 43.”   25 U.S.C. 
§ 1903(3).  Certain Named Plaintiffs have alleged that they are Alaska Natives and that they belong 
to the Alaska Native Subclass, which is defined as “Alaska  Native children who are or will be 
entitled to federal ICWA protection.”  Docket 16 ¶ 28(b). 
228  Adoptive Couple v. Baby Girl, 570 U.S. 637, 642 (2013).   
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“recognize the essential tribal relations of Indian people and the cultural and social 
standards prevailing in Indian communities and families.”229  “‘At the heart of ICWA’ lies 
a jurisdictional scheme aimed at ensuring that tribes have a role in adjudicating and 
participating in child custody proceedings involving Indian children . . . .”230 
  Section 1914 of ICWA contains a private right of action that allows an Indian 
child, a parent or Indian custodian, or an Indian child’s tribe to petition “any court of 
competent jurisdiction to invalidate” a state court foster care placement or termination of  
parental rights upon a showing that the state court’s “action violated ICWA Sections 1911, 
1912, or 1913.”231  Section 1915 prescribes , among other things,  an express preference 
methodology for adoptive, preadoptive, or foster care placement of  Indian children.232  
Section 1915(b) provides that   
[i]n any foster care or preadoptive placement, a preference 
shall be given, in the absence of good cause to the contrary, to 
a placement with  (i) a member of the Indian child ’s extended 
family; (ii) a foster home licensed, approved, or specified by 
the Indian child’s tribe; (iii) an Indian foster home licensed or 
approved by an authorized non- Indian licensing authority; or  
(iv) an institution for children appro ved by an Indian tribe or 
operated by an Indian organization which has a program 
suitable to meet the Indian child’s needs. 
 
Section 1915(b) further requires that  “[a]ny child accepted for foster care or preadoptive 
placement shall be placed in the least restrictive setting which most approximates a family 
 
229  Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023) (citing 25 U.S.C. § 1901(5)). 
230  Doe v. Mann, 415 F.3d 1038, 1049 (9th Cir. 2005)  (quoting Mississippi Band of 
Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989)).  
231  25 U.S.C. §1914; see also Doe, 415 F.3d 1038 at 1047. 
232  25 U.S.C. § 1915(a), (b).  
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and in which his special needs, if any, may be met.”  The Indian child “shall also be placed 
within reasonable proximity to his or her home, taking into account any special needs of 
the child.”233   
  Defendants argue that Plaintiffs ’ ICWA claim fails because violations of 
Section 1915 do not fall within Section 1914’s private right of action and courts have found 
that Section 1915 does not contain an  implied right of action .234  Plaintiffs counter that 
Defendants’ argument misses the point; they seek to “enforce Section 1915 under Section 
1983,” not Section 1914 or through an implied right of action. 235  Defendants reply that, 
even so, Section  1915 may not be enforced via 42 U.S.C.  § 1983.236  “In order to seek 
redress through § 1983 . . . a plaintiff must assert the violation of a federal right, not merely 
a violation of federal law.”237  To determine whether a federal statute creates an individual 
right, courts employ the test first announced in Blessing v. Freestone , 520 U.S. 329, 340 
(1997), which requires that (1) Congress “intended that the provision in question benefit 
the plaintiff ”; (2) “the right assertedly protected by the statute is not so ‘ vague and 
amorphous’ that its enforcement would strain judicial competence ”; and (3) “the statute 
unambiguously imposes a binding obligation on the States.”238  In Gonzaga University v. 
 
233  25 U.S.C. § 1915(b).  
234  Docket 23 at 65–67; Docket 25 at 66–28 (sealed); see also Doe v. Mann, 285 F. Supp. 
2d 1229, 1240–41 (N.D. Cal. 2003), aff’d, 415 F.3d 1038 (9th Cir. 2005); Navajo Nation v. 
Superior Ct. of State of Wash. for Yakima Cnty., 47 F. Supp. 2d 1233, 1243 (E.D. Wash. 1999), 
aff’d sub nom. Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 
F.3d 1041 (9th Cir. 2003).  
235  Docket 36-2 at 78 (“This is not a Section 1914  case seeking to invalidate individual 
state court orders, but a class action seeking to enforce Section 1915’s rules.”). 
236  Docket 38 at 24–28.  
237  Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in the original).  
238  Id. at 340–41.  
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Doe, 536 U.S. 273 , 283 (2002), the Supreme Court  clarified that the first prong of the 
Blessing test focuses on whether Congress intended to create a federal right. 239  C ourts’ 
role in discerning whether personal rights exist in the Section 1983 context therefore is no 
different from their role in discerning whether personal rights exist through an implied right 
of action  because “both inquiries  simply require a determination as  to whether or not 
Congress intended to confer individual rights upon a class of beneficiaries .”240  Evidence 
of congressional intent may be “found in the statute’s language as well as in its overarching 
structure.”241  If the Gonzaga-Blessing test is satisfied, “‘the right is presumptively 
enforceable’ through § 1983.”242  However, Defendants may overcome this presumption 
“by demonstrating that Congress foreclosed private enforcement expressly ‘ or impliedly, 
by creating a comprehensive enforcement scheme that is incompatible with ’ individual 
private lawsuits.”243 
  The Court’s analysis under Gonzaga and Blessing is hamstrung by a lack of 
clarity surrounding what rights Plaintiffs claim under Section 1915.  It is incumbent upon 
Plaintiffs to “identify with particularity the rights they claim[] ” since it is impossible to 
determine whether Section  1915, “as an undifferentiated whole, gives rise to undefined 
 
239  See also Anderson v. Ghaly, 930 F.3d 1066, 1073 (9th Cir. 2019).  
240  Gonzaga Univ., 536 U.S. at 285.  
241  Anderson, 930 F.3d at 1073 (quoting Ball v. Rodgers , 492 F.3d 1094, 1105 (9th Cir. 
2007)).  A statute’s text evidences congressional intent to create a federal right if the text employs 
“explicit rights-creating terms.”  Gonzaga, 536 U.S. at 284. 
242  Planned Parenthood Arizona Inc. v. Betlach, 727 F.3d 960, 966 (9th Cir. 2013)  
(quoting Gonzaga, 536 U.S. at 284).  
243  Id. (quoting Gonzaga, 536 U.S. at 284 n.4). 
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‘rights.’”244  The Blessing-Gonzaga framework was meant to be separately applied at the 
specific provision level .245  Courts may not look at a statutory section in its entirety and 
“determine at that level of generality whether it creates individual rights.” 246  Here, 
Plaintiffs have failed to articulate the claimed rights with any particularity; the Complaint 
simply recite s the different provisions of Section  1915 and then generally allege s that 
Plaintiffs have been deprived of those rights under those provisions.247  Further, Plaintiffs 
do not explain how  Congress intended to create an individual right  under any specific 
provision of Section  1915 and instead advanc e arguments that apply to ICWA as a 
whole.248  The Court is left wondering what purported right to analyze, as Plaintiffs address 
different asserted rights at different stages in the Blessing analysis.249  Plaintiffs cannot 
satisfy the Blessing test by pointing to a menu of potential rights under  Section 1915 and 
hoping the Court chooses one. 
 
244  Blessing v. Freestone, 520 U.S. 329, 342 (1997) ; see also Cal. State Foster Parent 
Ass’n v. Wagner, 624 F.3d 974, 979 (9th Cir. 2010) (“We have held that Blessing’s first factor 
calls for evaluating the ‘provision in question,’ and requires that we identify the particular statutory 
provision at issue”).  
245  See Blessing, 520 U.S. at 342. 
246  ASW v. Oregon, 424 F.3d 970, 977 (9th Cir. 2005). 
247  Docket 16 ¶¶ 281–290.  For example, the Complaint alleges Plaintiffs have (1) a right 
“to placement in the least restrictive and most family -like setting, within reasonable proximity to 
their home communities”; (2) a right “to be placed with members of their extended families”; (3) a 
right for OCS “to consistently review how to move that chi ld to a legally preferred placement ”; 
and (4) a right to have OCS recruit and retain enough foster homes approved by Indian tribes .  
Plaintiffs’ reply continues with the list, asserting Plaintiffs have (1) a right to have states maintain 
records of their compliance with ICWA placement preferences.  Docket 36-2 at 78. 
248  Docket 36-2 at 79.  Plaintiffs also choose to ignore that other courts in this Circuit have 
examined congressional intent and concluded that Section 1915(b) does not have an implied right 
of action.  Doe, 285 F. Supp. 2d at 1240; Navajo Nation, 47 F. Supp. 2d at 1243.  Under Gonzaga, 
536 U.S. at 274, implied right of action cases “should guide the determination whether a statute 
confers rights enforceable under § 1983.” 
249  See Docket 36-2 at 78–79 (relying on Section  1915(e) for the second Blessing prong 
and Sections 1915(a) and (b) for the third prong).  
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  Plaintiffs were given an opportunity at oral argument to clarify what specific 
individual right they seek to vindicate under Section 1915.  They responded, “OCS has to 
have more [Alaska Native] homes available for these  children, and it does not.” 250  
Plaintiffs thus assert that Section 1915(b) implies an individual right for OCS to ensure that 
there are sufficient Alaska Native foster homes and its failure to do so amounts to a 
violation of that right.251  Setting aside the vagueness of this purported right —e.g. , how 
many homes is “sufficient”?—the requirement that OCS develop or recruit Indian foster 
homes is not found in ICWA.  In Haaland v. Brackeen, the Supreme Court found that 
Section 1915 does not violate the Tenth Amendment ’s anti-commandeering principles in 
part because “ Section 1915 does not require anyone , much less the States, to search for 
alternative placements.”252  Instead, “the burden is on the tribe or other objecting party to 
produce a higher-ranked placement.”253  That logic is applicable here.  Section  1915(b) 
plainly does not require OCS to cultivate a certain number of Alaska Native foster 
homes.254  Thus, this purported right fails, at minimum, the third prong of the Blessing test 
because Section 1915 does not impose a binding recruitment obligation on the State. 
  Plaintiffs also allege that “ Defendants have deprived the Alaska Native 
Subclass members of their rights to be placed with members of their extended families.”255  
The Court understands allegations that  OCS placed the Named Plaintiffs in “non-ICWA” 
 
250  Docket 47 (Oral Argument Tr. 32:6–8). 
251  Id. 
252  143 S. Ct. at 1635. 
253  Id. 
254  Any such requirement would likely present serious anticommandeering concerns.  
See id.  
255  Docket 16 ¶ 289.  
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foster homes or failed to place the Named Plaintiffs in “ICWA-compliant” foster homes to 
be related to this purported right .256  “Non- ICWA” and “ICWA -compliant” are legal 
conclusions not entitled to the presumption of truth on a motion to dismiss for failure to 
state a claim.257  But more fundamentally, this purported right, as articulated by Plaintiffs, 
is far too blunt an instrument with which to effectuate the statute’s language or achieve its 
purpose.  By its plain terms, ICWA does not create an unqualified right for Alaska Native 
children to be placed with their extended families  or with an Alaska Native foster home .  
Instead, t he statutory language acknowledges the need for culturally appropriate 
preferences and oversight from tribes.  Section 1915(b) provides “a preference shall be 
given, in the absence of good cause to the contrary ” to foster care placements in a 
hierarchical order, beginning with a member of the Indian child’s extended family.258  The 
standards to be applied in meeting the preference requirements are the “prevailing social 
and cultural standards of the Indian community in which the parent or extended family 
resides or . . . maintain[s] social and cultural ties.” 259  Under Section 1915(c), the Indian 
child’s tribe may establish a different o rder of preference by resolution.  Plaintiffs ’ 
implication that any placement outside of ICWA ’s preferences violates Plaintiffs ’ rights 
under ICWA seeks to calcify Section 1915(b)’s preferences in a manner inconsistent with 
the statutory language.   
 
256  Id. ¶¶ 20, 76, 80, 85, 90, 93.  
257  See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 
258  25 U.S.C. § 1915(b). 
259  25 U.S.C. § 1915(d).  
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  The remainder of the litany of weakly defined rights articulated by Plaintiffs 
either are unrelated to the Named Plaintiffs’ cases, untethered to the statutory language, or 
both.  For example, Plaintiffs cite to Section  1915(a), which prescribes hierarchical 
adoptive placement preferences for Indian children. 260  The Complaint does not contain 
any allegations indicating that any of the Named Plaintiffs are up for adoption.  Plaintiffs 
also cite to Section 1915(e), which mandates that records of Indian children’s placements 
shall be maintained by the s tate and shall be made available at any time upon the request 
of the Secretary of the Indian child ’s tribes .261  The Complaint is devoid of allegations 
regarding the maintenance of , or access to , the Named Plaintiffs ’ placement records.  
Plaintiffs assert that Section 1915(b)’s placement preferences must be “read in light of 
ICWA’s requirement in [§ 1912(d)] ” that OCS must make active efforts to “ provide 
remedial services and rehabilitative programs designed to prevent the breakup of the Indian 
family.”262  Plaintiffs do not provide any support, from ICWA ’s statutory language or 
legislative history, to warrant the Court’s importing a standard from a different section of 
ICWA and finding that the imported standard amounts to a right enforceable through  
42 U.S.C. § 1983. 
  To seek redress under 42 U.S.C. § 1983, a plaintiff must assert the violation 
of a federal right, not simply a violation of federal law.263  Plaintiffs have done neither here.  
The facts as alleged in the Complaint do not state a plausible violation of ICWA.  Plaintiffs’ 
 
260  Docket 16 ¶¶ 282, 289, 290; Docket 36-2 at 78.  
261  Docket 36-2 at 78.  
 262  Docket 16 ¶ 287. 
263  Blessing, 520 U.S. at 340. 
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allegations regarding ICWA are vague or conclusory.  Moreover, Section 1915(b) requires 
Indian children to be placed in the highest preference home available, but Plaintiffs’ 
allegations fail to account for the fact that these preferences only apply in the absence of 
good cause to the contrary. 264  Plaintiffs assert that arguments relating to good cause are 
inappropriate for review on a motion to dismiss and  that, in any event, the Complaint 
alleges that there was no good cause to deviate from ICWA ’s preferred placements in the 
Named Plaintiffs’ cases.265 
  Plaintiffs’ first argument as plead lacks merit.  By the statute ’s plain 
language, a lack of good cause is  required for any claim based on ICWA ’s placement 
preferences, and Plaintiffs cannot state a claim under ICWA without this assertion .  
Plaintiffs’ second argument is unsupported by the Complaint.  Plaintiffs  point to two 
paragraphs in the Complaint that  they assert indicates a lack of good cause. 266  The first 
describes Connor B.’s placement with a non-Indian family after his mother provided OCS 
with contact information for several relatives.  The Complaint alleges that OCS 
“preliminary vetted the biological father as a potential placement  . . . wait[ing] several 
months to even visit the father ’s home” before placing Connor B. with a non- Indian 
family.267  The Complaint also asserts that OCS has not placed Connor B. with an  uncle 
who is willing to take him.268  ICWA certainly would require Connor B. to be placed with 
 
264  Plaintiffs inaccurately describe this as “good cause for deviating from ICWA.”  
Docket 36-2 at 80.  The good cause requirement is found in ICWA ––complying with it complies 
with ICWA.  
265  Id. at 79–80.  
266  Id. at 80.  
267  Docket 16 ¶ 70. 
268  Id. ¶ 71. 
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his father or uncle above others in the absence of good cause.  However, Plaintiffs simply 
have not alleged that OCS lacked good cause or that the Superior Court did not find good 
cause to deviate from the hierarchical preferences when reviewing Connor B.’s placement.  
Plaintiffs therefore have not adequately alleged that Defendants violated ICWA. 
  In sum, Plaintiff have not established that Section  1915 creates individual 
rights enforceable through 42 U.S.C. § 1983.  To be clear, the Court does not hold that 
Section 1915 does not contain individual rights enforceable through 42 U.S.C. § 1983, only 
that Plaintiffs have not adequately  established that any one of the unspecific rights 
Plaintiffs identify in their pleading passes the Bless ing test.  It is entirely possible that 
Plaintiffs can articulate a specific enforceable right under Section 1915, prove Congress’s 
intent to create that right, and demonstrate that Defendants have violated that right in 
Plaintiffs’ cases.  They plainly have not done so here.  Defendants ’ Motion to Dismiss 
Plaintiffs’ Claim Four is GRANTED, and these claims are dismissed without prejudice.   
 (4) Claim Five—A doption Assistance Child Welfare Act  
  Plaintiffs’ fifth claim alleges a violation of rights under the Adoption 
Assistance and Child Welfare  Act (“CWA”), 42 U.S.C. § 672(a) , that can be enforced 
through 42 U.S.C. § 1983.269  The CWA, “also known as Title IV-E of the Social Security 
Act[,] was adopted in 1980 to enable states to provide foster care and adoption assistance 
 
269  Henry A. v. Willden, 678 F.3d 991, 996 (9th Cir. 2012).  Plaintiffs  refer to 42 U.S.C. 
§ 670, et seq. , with the abbreviation  AACWA.  Ninth Circuit case law shortens this simply to 
CWA.  For consistency with other  Circuit opinions, the Court will continue with preexisting 
convention and use CWA; see also Kirwin v. Kot, Case No. Cv-22-00471-TUC-RRC-BGM, 2023 
WL 4747396 at *5 (July 25, 2023); Ah Chong v. McManaman, 154 F. Supp. 3d 1043, 1046 (D. 
Haw. 2015). 
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for children in need of such services.”270  Section 672(a)(1) of the CWA provides, “[e]ach 
State with a plan approved under this part shall make foster care maintenance payments on 
behalf of each child who has been removed from the home of a relative  . . . into foster 
care.”  Section 672(b) provides that foster care maintenance payments may only be made  
on behalf of a child who is (1) in the “ foster family home of an individual ” or (2) “in a 
child-care institution.”  “Foster family home” is defined as a home o f an individual or 
family that is “ licensed or approved by the State in which it is situated as a foster family 
home that meets the standards established for the licensing or approval .”271  The Ninth 
Circuit has held that Section 672(a) confers an individually enforceable right to foster care 
maintenance payments and that foster parents have access to a remedy under 42 U.S.C. 
§ 1983 to enforce that right.272  Here, Plaintiffs claims concern to whom that individually 
enforceable right is available. 
  Plaintiffs allege that “Defendants have an ongoing policy, pattern, or practice 
of not providing foster care maintenance payments to kinship caregivers of members of the 
Kinship Subclass who qualify as approved caregivers under 42 U.S.C. §  672(a)(1) unless 
they become licensed foster parents. ”273  In the alternative, Plaintiffs allege that 
“Defendants have an ongoing policy, pattern, or practice of failing to take necessary steps 
to ensure that relatives or community members who could appropriately provide homes for 
 
270  California State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 978 (9th Cir. 2010).  
271  42 U.S.C. § 672(c)(1)(A)(i).  
272  California State Foster Parent Ass’n, 624 F.3d at 982. 
273  Docket 16 ¶ 295.  
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Plaintiff Kinship Subclass members .  . . are licensed as kinship foster parents , and 
adequately reimbursed for their care[.]”274   
  Plaintiffs’ first theory hinges on the interpretation of “foster family home” in 
42 U.S.C. § 672(a)(1).  Defendants assert that, under Section 672(a)(1), there are two types 
of foster families that are entitled to foster care maintenance payments:  “(1) licensed foster 
parents; and (2) state -approved foster homes that meet the standards for licensing.” 275  
Defendants assert that Claim Five must fail because Plaintiffs have not alleged that any of 
the Named Plaintiffs ’ relatives fit into either of  these two categories and w ere denied a 
foster care maintenance payment. 276  Plaintiffs claim that an “approved” foster family 
home does not have to meet the standards for licensing and that approval of a relative for 
the purposes of placement is sufficient  to entitle that relative to foster care maintenance 
payments.277  Plaintiffs argue that requiring “approved” foster families to meet the same 
standards as license d foster families renders the statutory phrase  “licensed or approved” 
redundant.278 
  Although courts within the Ninth Circuit have yet to address this issue,  it is 
not wholly novel;  a recent Sixth Circuit opinion  addressed Plaintiffs’ precise argument.  
Interpreting the statutory language in Section 672(a)(1), the court found that “an ‘approved’ 
relative caregiver is not eligible for [ foster care maintenance payments ] under Title IV-E 
 
274  Id. ¶ 296.  
275  Docket 23 at 69–70; Docket 25 at 70–71 (sealed). 
276  Docket 23 at 70. 
277  Docket 36-2 at 82.   
278  Id. 
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unless the state ‘approval’ standards are the same standards that the state uses for licensing 
foster caregivers.”279  Addressing a red undancy argument identical to the one Plaintiffs 
make here, the Sixth Circuit found that “ Congress had good reason to use a belt -and-
suspenders approach by including what states might call ‘ licensed’ and ‘approved’ foster 
family homes ” because “approve” can function as a “catch -all” term for state s that use 
different terminology , but the same standards must be met to qualify for foster care 
payments.280  This interpretation  argument is buttressed by the fact that the  U.S. 
Department of Health and  Human Services’ regulations implementing the CWA and for 
the Title IV-E eligibility define “foster family home” to mean “the home of an individual 
or family licensed or approved as meeting the standards established by the licensing or 
approval authority(ies), that provides 24-hour out-of-home care for children.”281  The Court 
is persuaded by this line of reasoning.  Because Plaintiffs do not assert that any of Plaintiffs’ 
relative caregivers were licensed as foster parents or met the standards for licensing,282 they 
do not have an individually enforceable right  to foster care maintenance payments under 
the CWA. 
  As for Plaintiffs ’ second theory, Plaintiffs assert that OCS failed to assist, 
and in some cases actively frustrated, efforts by approved  relatives to secure a foster care 
license.283  While these allegations reveal potential incompetence on OCS’s part, they do 
 
279  T.M., Next Friend of H.C. v. DeWine, 49 F.4th 1082, 1089 (6th Cir. 2022). 
280  Id. at 1090. 
281  45 C.F.R. § 1355.20(a)(2).  
282  See, e.g., Docket 16 ¶¶ 47–53. 
283  Id. ¶ 296. 
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not describe a violation of federal law.  Section 672 does not require state agencies to take 
all necessary steps to assist kinship placements to become licensed.  In their opposition to 
Defendants’ Motion to Dismiss, Plaintiffs argue, for the first time, that Defendants’ actions 
actually violate the “AACWA’s due diligence requirement. ”284  Section  671(a)(29) 
provides that “within 30 days after the removal of a child from the custody of the parent or 
parents of the child, the State shall exercise due diligence to identify and provide notice ” 
to certain relatives that the child has been removed from the custody of the parents, explain 
the options that relative has to participate in the care of the child, explain the requirements 
to become a foster family home , and explain how to receive certain payments.   Plaintiffs 
do not allege that relatives of the Named Plaintiffs did not receive the required notice after 
the children were placed in OCS custody.  Instead, Plaintiffs attempt to convert this notice 
requirement into one requiring affirmative efforts from OCS to help relatives get licensed 
as foster parents.   Section 671(a)(29) does not contain such a requirement  and, even if it 
did, Plaintiffs have not established that purported requirement would amount to a right 
enforceable through 42 U.S.C. § 1983.  Defendants’ Motion to Dismiss is GRANTED as 
to Plaintiffs’ Claim Five brought under 42 U.S.C. § 672(a).
285 
 
284  Docket 36-2 at 81–82 n.98. 
285  Defendants argue that  Plaintiffs’ request for relief (m), which seeks an injunction 
requiring Defendants to “assist unlicensed kinship car egivers in obtaining foster care licenses to 
take care of members of the Kinship Class,”  is barred by Pennhurst State School & Hosp. v. 
Halderman, 465 U.S. 89 (1984), because federal courts lack jurisdiction to order state actors to 
comply with state law.  Docket 23 at 52–53; Docket 25 at 53–54 (sealed).  Plaintiffs counter that 
Pennhurst is inapplicable because request for relief (m) is intended to address a violation of 
AACWA, not Alaska state law.  Docket 36-2 at 81 n.96.  Because the Court dismisses Plaintiffs ’ 
AACWA claim in Claim Five, it need not address Defendants’ Pennhurst argument.  
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(5) Claims Six and Seven—A mericans with Disabilities Act and The 
Rehabilitation Act 
 
  In C laims Six and Seven, Plaintiffs assert claims under Title II  of the  
Americans with Disabilities Act (“ADA”) and Section 504 of the  Rehabilitation Act  
(“Section 504”).286  The ADA provides, “no qualified individual with a disability shall, by 
reason of such disability, be excluded from participation in or be denied the benefits of the 
services, programs, or activities of a public entity, or be subjected to discrimination by any 
such entity. ”287  Section 504 prohibits disability discrimination by recipients of federal 
funds.288  To state a prima facie case for disability discrimination under Title II of the ADA, 
a plaintiff must allege that they  are (1) a “qualified individual with a disability” ; 
(2) “excluded from participation in or denied the benefits of a public entities services, 
programs, or activities, or was otherwise discriminated against by the public entity”; and 
(3) “the exclusion, denial of benefits, or discrimination was by reason of [ their] 
disability.”289  The elements of a prima facie Section 504 claim mirror those of an ADA 
claim “with the additional requirement that the plaintiff prove that ‘ the program receives 
federal financial assistance. ’”290  “Because the applicable provisions of the ADA and the 
 
 286  Docket 16 ¶¶ 298–315. 
287  42 U.S.C. § 12132.  
 288  Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 738 (9th Cir. 2021).   In Payan, 
Westlaw incorrectly links Section 504 references to 28 U.S.C. § 504, Prohibition against certain 
persons holding office.  Section 504 refers to the original section of the Congressional legislation  
and is codified at 29 U.S.C. § 701, et seq. 
289  Where Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 860 (9th Cir. 2022) 
(quoting Duvall v. Cnty of Kitsap, 260 F.3d 124, 1135 (9th Cir. 2001)). 
290  Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th at 738 (9th Cir. 2021). 
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Rehabilitation Act are ‘co-extensive,’ [courts] discuss both claims together, focus ing on 
the ADA.”291 
  The U.S. Department of Justice (“DOJ”) has promulgated  regulations 
implementing the ADA.  One such regulation , known as the “integration mandate, ” 
provides that “[a] public entity shall administer services, programs, and activities in the 
most integrated setting appropriate to the needs of qualified individuals with 
disabilities.”292  The “most integrated setting” is one that “enables individuals  with 
disabilities to interact with nondisabled persons to the fullest extent possible.”293  Another 
regulation requires public entities to “make reasonable modifications in policies, practices, 
or procedures when the modifications are necessary to avoid discrimination on the basis of 
disability, unless the public entity can demonstra te that making the modifications would 
fundamentally alter the nature of the service, program, or activity.”294  At Docket 31, DOJ 
has filed a Statement of Interest , offering its interpretation of its regulations as applied in 
this case.  As the federal agency charged with the enforcement and implementation of the 
ADA, DOJ’s views are entitled to “considerable respect.”295 
 
291  M.R. v. Dreyfus , 697 F.3d 706, 733 (9th Cir. 2012); accord Thomas v. Kent , 385 F. 
Supp. 1048, 1053 (C.D. Cal. 2017) ; Wyatt B. by M cAllister v. Brown , No. 6:19- cv-00556-AA, 
2021 WL 4434011, at *11 (D. Or. Sept. 27, 2021). 
292  28 C.F.R. § 35.130(d). 
293  28 C.F.R. Pt. 35, App. B. 
294  28 C.F.R. § 35.130(b)(7). 
295  M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011), opinion amended and superseded 
on denial of reh’g, 697 F.3d 706 (9th Cir. 2012); see also Olmstead v. L.C. ex rel. Zimring, 527 
U.S. 581, 598, (1999) (“Because [DOJ] is the agency direct ed by Congress to issue regulations 
implementing Title II . . . its views warrant respect.”). 
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  Plaintiffs assert two theories of violations under the ADA and Rehabilitation 
Act:  (1) Defendants discriminated against Plaintiffs by failing to offer reasonable 
modifications to existing foster care programs, and (2) Defendants violated the integration 
mandate by placing them at risk of future institutionalization.296  The Court addresses each 
of these theories in turn. 
(a) Reasonable modifications 
  A state may discriminate on the basis of disability if a “ facially neutral and 
universally enforced policy ‘burden[ed] [persons with disabilities]  in a manner different 
and greater than it burden[ed] others.’”297  When a state policy “discriminate[s] against the 
disabled in violation of the ADA, the ADA’s regulations mandate reasonable modifications 
to those policies in order to avoid discrimination on the basis of disability, at least when 
such modification would not fundamentally alter the nature of the services provided by the 
state.”
298  “The purpose of the ADA ’s reasonable [modification] requirement is to guard 
against the facade of ‘ equal treatment’ when particular [modifications] are necessary to 
level the playing field. ”299  Plaintiffs allege that Defendants have  failed to modify their 
programs to ensure that foster youth with disabilities have an equal  opportunity to obtain 
the benefits of: 
 a.   OCS ‘Safety Plans’ that would allow them to remain 
in their family home under OCS supervision; 
 
 
 296  Docket 36-2 at 83–89; see also Docket 16 ¶¶ 298–315.  
297  McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).   
298  Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003).  
299  McGary, 386 F.3d at 1267.  
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 b.  Appropriate healthcare and timely health screenings 
provided in the most  integrated setting appropriate to their 
needs; 
 
 c.  Timely delivery of behavioral heal thcare and other 
disability-related community-based services needed to avoid 
unnecessary placement changes,  or placement at psychiatric 
hospitals, residential care facilities, and other  institutional 
settings; and 
 
 d.  Services delivered to foster care pr oviders to enable 
them to meet the need  of foster youth with disabilities, 
including respite care services.300 
 
  Plaintiffs fail to state a claim in connection with OCS safety pla ns, health 
screenings, and respite care services  because they do not allege that they were 
discriminated against or that any discrimination was by reason of their disabilities .  None 
of the Named Plaintiffs allege that OCS’s policies regarding these services burdened them 
in a manner different from and greater than it burdened non -disabled children.301  The 
allegations regarding these services are scant and unconnected to Plaintiffs ’ disabilities.  
For instance, the Complaint mentions that George V. received “respite.”302  Plaintiffs assert 
that Defendants discriminated against Jeremiah M. by declin ing to make reasonable 
modifications to their “safety planning program”  and thus denying him the same 
 
300  Docket 16 ¶ 306. 
301  See McGary, 386 F.3d at  1265 (“McGary alleges that the City ’s nuisance abatement 
policy burdened him in a manner different from and greater than it burdened non-disabled 
residents, solely as a result of his disabling condition.  McGary was physicall y impaired from 
meningitis and hospitalized.  He claims that the City’s denial of a reasonable time accommodation 
prevented him from complying with the ordinance due to this disability.”) ; Smith v. City of 
Oakland, 612 F. Supp. 3d 951, 965 (N.D. Cal. 2020) (“Plaintiffs have alleged that Oakland ’s 
[Residential Rent Assistance Program] unduly burdens them because, as disabled individuals, they 
are not able to access the program or must do so at great cost.”). 
302  Docket 16 ¶ 84.  
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opportunity afforded to other children to remain in their parent’s homes.303  The Complaint 
contains allegations that Jeremiah M. came to OCS’s attention because, “[w]hile no longer 
living with the children, their father visited the family one night while intoxicated.  The 
police came to the home and called OCS and the children’ s mother’s, Ms. N. ’s, landlord 
later evicted her because of the incident .”304  Plaintiffs assert this removal evinces 
discrimination since, “[l]ikely because of his disabilities and because of prejudiced notions 
about the difficulty of parenting children with disabilities, . . . Defendants appear to have 
made no attempt to explore other arrangements, such as an in-home safety plan, that might 
have allowed Jeremiah M. and his siblings to remain in their mother’s care.”305  The facts 
as alleged in the Complaint ha ve nothing to do with Jeremiah  M.’s disability.  In their 
opposition to Defendants’ Motion to Dismiss, Plaintiffs attempt to connect Jeremiah M.’s 
removal from his mother ’s custody and disability discrimination through extrapolation.  
Finally, none of the Named Plaintiffs assert that they were unduly burdened by OCS ’s 
provision of health care or health screenings or that OCS denied or excluded them from 
healthcare services because of their disabilities.306  
  In short, Plaintiffs ’ reasonable modification claims brought under 
Paragraphs 306(a), (b), and (d)  fail for the simple reason that the Complaint barely 
mentions these services , thereby falling far short of  pleading a plausible claim that  
 
303  Docket 36-2 at 86–87.  
304  Docket 16 ¶ 44. 
305  Docket 36-2 at 87.  
306  The Complaint distinguishes between healthcare in Paragraph 306(b) and behavioral 
healthcare in Paragraph 306(c).  The Court does the same.  
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Defendants denied Plaintiffs reasonable modifications which would level the playing field 
and ensure that Plaintiffs have equal access to foster care services.  While the Court can 
imagine that Plaintiffs’ disabilities might have played a role in the provision and allocation 
of these services, speculation alone cannot state a claim under the ADA.   Because the 
allegation contained in Paragraph 306(c) relates to the integration mandate, the Court 
addresses it in the next section.  
(b) Integration mandate 
  The integration mandate “serves one of the principal purposes of Title II of 
the ADA:  ending the isolation and segregation of disabled persons.”
307  Ap plying the 
“integration and anti-isolation principles”308 embodied in this mandate, the Supreme Court 
in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999), held that unjustified isolation 
constitutes discrimination based on disability .  The Supreme Court held that the ADA 
requires “community-based treatment for persons with mental disabilities when the State’s 
treatment professionals determine that such placement is appropriate, the affected persons 
do not oppose such treatment, and the placement can be reasonably accommodated . . . .”
309 
 Defendants assert that Plaintiffs’ Claims for violation of the int egration 
mandate fail because every Named Plaintiff in the ADA subclass is currently living in a 
home or community-based setting and any previous institutionalization was temporary in 
nature.310  Defendants also assert that Plaintiffs ’ prior institutionalizations were not 
 
307  Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005). 
308  Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003). 
309  Olmstead, 527 U.S. at 607.  
310  Docket 23 at 73–74; Docket 25 at 74–75 (sealed). 
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“unjustified” because Plaintiffs do not allege that the state’s treatment professionals 
determined that community placement wa s appropriate during Plaintiffs ’ previous 
institutionalizations.311  Further, Defendants asse rt that children in Alaska may  only be 
placed in psychiatric treatment centers if a Superior Court judge determines the placement 
is justified and in the children’s best interest.312  Defendants also contend that, “to the extent 
that the State should ensure” there are more mental health providers in Alaska, that “is not 
something that OCS o r this Court can reasonably do.” 313  Plaintiffs respond by pointing 
out that a claim under the integration mandate can be based on a risk of future 
institutionalization.314  Plaintiffs also refute the suggestion that state -court reviews of 
psychiatric placements render institutionalizations “justified” under Olmstead because the 
state statute at issue only applies to placement in secure residential psychiatric treatment  
centers.315  DOJ echoes this argument, adding that temporary institutional placements can 
violate the integration mandate. 316  DOJ also assert s that, “[w]hen alleging a violation of 
the integration mandate, plaintiffs need not rely  on a determination by a state’s treatment 
professional to demonstrate the appropriateness of services in a community setting.”317   
  A plaintiff asserting a violation of the integration mandate need only show 
that the state action at issue “creates a serious risk of institutionalization.”318  Further, “‘[a] 
 
311  Docket 23 at 74–75; Docket 25 at 75–76 (sealed).  
312  Docket 23 at 74–75; Docket 25 at 75–76 (sealed). 
313  Docket 23 at 75; Docket 25 at 76 (sealed). 
314  Docket 36-2 at 87–88. 
315  Id. at 88. 
316  Docket 31 at 8–10.  
317  Id. at 11. 
318  M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th Cir. 2011), opinion amended and superseded 
on denial of reh’g, 697 F.3d 706 (9th Cir. 2012).  The Court notes Defendant ’s Notice of 
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state’s reduction in services may violate the integration mandate where it unjustifiably 
forces or will likely force beneficiaries from an integrated environment into institutional 
care’ or a segrega ted setting.”319  In order to comply with the integration mandate, s tates 
must implement reasonable modification s to avoid unnecessary institutionalization or 
isolation, at least where the modification s do not fundamentally alter the s tate’s program 
or activity.320 
  Plaintiffs allege that Gayle T., a member of the ADA Subclass,  has been 
subject to two unduly restrictive institutionalizations and that her prior caseworker 
threatened that she would be sent back to a treatment center if she misbehaves.321  Another 
member of the ADA subclass, George V., has been moved eleven times, including to two 
institutions, in part due to lack of appropriate foster homes and failure to properly notify 
foster parents of George V. ’s medical and behavioral needs.322  OCS has placed Lana H. 
at North Star Behavioral Health System f ive separate times due to a lack of available 
therapeutic foster homes.323  OCS then sent Lana H. to a treatment center in Texas.324  She 
is currently placed in a homeless shelter.325  These allegations state a claim for a violation 
 
Supplemental Authority at Docket 53, United States v. Mississippi, ___ F.4th ___, No. 21-60772, 
2023 WL 6138536 (5th Cir. Sept. 20, 2023), and finds no reason to deviate from Ninth Circuit 
precedent.  
319  A.H.R. v. Washi ngton State Health Care Auth., 469 F. Supp. 3d 1018, 1044 (W.D. 
Wash. 2016) (quoting G. v. Hawaii, No. CIV. 08-00551 ACK-BM, 2010 WL 3489632, at *9 (D. 
Haw. Sept. 3, 2010)).  
320  M.R., 663 F.3d at 1116; see Olmstead, 527 U.S. at 596–97. 
321  Docket 16 ¶¶ 116, 119, 123.   
322  Id. ¶¶ 85–89.  
323  Id. ¶¶ 126–32. 
324  Id. ¶ 132. 
325  Id. ¶ 135.  
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of the integration mandate and a failure to  implement reasonable modification to avoid 
unjustified isolation.326 
  Plaintiffs of the ADA Subclass  have plausibly alleged that the state has 
deprived them of services provided in the least -restrictive setting.  The persistent cycle of 
a lack of appropriate placements followed by institutionalizations plausibly alleges that 
Defendants’ practices have placed Plaintiffs in this cycle at a  serious risk of being forced 
from an integrated environment into an institutional or segregated setting.  The Court finds 
DOJ’s view that Plaintiffs need not plead that the s tate’s treatment professionals 
determined they could be served in the community  compelling.327  The Court is loath  to 
require that Plaintiffs ’ claims depend  on securing an evaluation from the same entity 
accused of subjecting them to unjustified isolation due in part to the lack of adequate 
alternative options .  Further, the allegations contending that certain Plaintiffs were 
institutionalized solely because OCS had nowhere else to send them at that moment 
strongly suggests t hat Plaintiffs could have received treatment in a less restrictive 
environment were it not for OCS ’s restraints.  Finally, a  state court’s review of some of 
these placements do es not remove the taint of an ADA violation from these 
institutionalizations unless the state court applies the standards of Olmstead.   Finally, to 
the extent the Defendants assert a fundamental alteration defense, and it is not clear that 
 
326  See Wyatt B. by McAllister v. Brown , No. 6:19-cv -00556-AA, 2021 WL 4434011, at 
*13 (D. Or. Sept. 27, 2021) (finding that allegations that named plaintiffs had been unnecessarily 
placed in institutional facilities and deprived of placement in the least-restrictive settings sufficient 
to state a claim for a violation of the integration mandate.).  
327  Docket 31 at 11.  
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they do, this defense is undeveloped and inappropriate for resolution on a motion to 
dismiss.328 
  Defendants’ Motion to D ismiss is GRANTED as to Plaintiffs ’ reasonable 
modification claims in  Paragraphs 306(a), (b), and (d) ; and DENIED as to Plaintiffs ’ 
claims in Paragraph 306(c) and for violations of the integration mandate. 
(6) Leave to amend 
  Consistent with the liberal spirit of Federal Rule of Civil Procedure 15(a), to 
the extent the Court has granted Defendants ’ Motion to Dismiss under Rule 12(b) (6), it 
will permit Plaintiffs to amend their Complaint. 329  Although Plaintiffs already have 
amended their Complaint once, the Court does not find that the pleading deficiencies 
identified herein could not possibly be cured by the allegation of other facts.330 
F. Interlocutory Appeal 
  Under 28 U.S.C. § 1291, appellate review is normally available only after a 
final judgment has been entered by a district court.  However, a district court’s order may 
be certified for interlocutory appeal if “ (1) ‘the appeal involves a controlling question of 
law;’ (2) there is a ‘substantial ground for difference of opinion’ on that question; (3) ’an 
immediate appeal would materially advance the ultimate termination of the litigation;’ and 
 
328  See generally Docket 23 at 70–75; Docket 25 at 71–76 (sealed); Lentini v. Cal. Ctr. for 
the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004) (“This court has recognized that whether 
an accommodation causes a fundamental alteration is ‘an intensively fact-based inquiry.’”); Smith 
v. City of Oakland, 612 F. Supp. 3d 951, 967 (N.D. Cal. 2020) (declining to consider fundamental 
alteration defense at the motion-to-dismiss stage).  
329  Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires”).  
330  Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“[A] district court should grant 
leave to amend even if no request to amend the pleading was made, unless it determines that the 
pleading could not possibly be cured by the allegation of other facts.”).  
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(4) failure to certify the order ‘would result in wasted litigation and expense.’”331  A district 
court may certify an order for interlocutory appeal sua sponte.332   
  A question of law is controlling if its resolution on appeal “could materially 
affect the outcome of litigation in the district court.” 333  Here, immediate appeal on the 
issue of whether ongoing child custody proceedings are the type of proceedings  to which 
Younger applies would materially affect the outcome of this case .334  As for the second 
requirement, “[c]ourts traditionally will find that a substantial ground for difference of 
opinion exists where ‘the circuits are in dispute on the question and the court of appeals of 
the circuit has not spoken on the point, if complicated questions arise under foreign law, or 
if novel and difficult questions of first impression are presented. ’”335  Younger ’s 
applicability in the foster care class action context is an issue on which reasonable jurists 
could reach, and have reached,  contradictory conclusions. 336  The Fourth and Seventh 
 
331  In re Apple Inc. App Store Simulated Casino-Style Games Litig., 625 F. Supp. 3d 971, 
996 (N.D. Cal. 2022). 
332  See Deutsche Bank Nat. Tr. Co. v. F DIC, 744 F.3d 1124, 1133–34 (9th Cir. 2014);  
Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1071 (9th Cir. 2006). 
333  In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). 
334  While the applicability of Younger in this case is the controlling question of law that 
this Court believes warrants  an interlocutory appeal, “[a]n appellate court ’s interlocutory 
jurisdiction under 28 U.S.C. § 1292(b) permits it to address any issue fairly included within the 
certified order because it is the order that is appealable, and not the controlling question identified 
by the district court.”  Deutsche Bank, 744 F.3d at 1134.   
335  Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010) (quoting 2 FED. PROC., Law. 
Ed. § 3:212 (2010)).  
336  The District of Oregon refused to certify its Motion to Dismiss Order in Wyatt B. v. 
Brown, No. 6:19-CV-00556-AA, 2022 WL 4547903, at *1 (D. Or. Sept. 29, 2022).  However, this 
case involved only O ’Shea abstention for which there is no substantial ground for difference of 
opinion in the foster care class action context. 
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Circuits reached conflicting decisions on this issue in 2022.337  The Ninth Circuit has not 
addressed Younger abstention in the foster care class action context since L.H. v. Jamieson, 
643 F.2d 1351, 1354 (9th Cir. 1981) , well before the Supreme Court ’s winnowing of 
Younger in Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 78–82 (2013).  Finally, an 
appeal will materially advance the ultimate termination of th is litigation  and ensure 
litigation resources are not waste d unnecessarily.  Should the Ninth Circuit reverse this 
Court and find that Younger applies in this case, that decision would terminate the 
litigation.  Although in this Order the Court grants Plaintiffs leave to amend their 
Complaint, any amendments to add, delete, or modify a claim will have no effect  on the 
threshold issue of whether this Court should abstain from hearing this case under Younger.  
If the interlocutory appeal is not granted and the Ninth Circuit reverses the Court’s holding 
after final judgment, the parties and the Court will have wasted significant time and 
expense throughout the litigation.   
III.    CONCLUSION 
  For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 
PART Defendants’ Motion to Dismiss.  The Court sua sponte  CERTIFIES THIS 
ORDER FOR IMMEDIATE INTERLOCUTORY APPEAL .  This certification does 
not stay the proceedings in the district court. 338  Should Plaintiffs wish to file a Second 
Amended Complaint, they shall do so within sixty (60) days of this Order. 
 
337  Compare Ashley W. v. Holcomb, 34 F.4th 588, 594 (7th Cir. 2022), with Jonathan R. 
by Dixon v. Justice, 41 F.4th 316, 328 (4th Cir. 2022). 
338  28 U.S.C. § 1292(b). 
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  IT IS SO ORDERED this  28th day of September , 2023 , at Anchorage, 
Alaska. 
 
                   /s/ Joshua M. Kindred                
 JOSHUA M. KINDRED 
 United States District Judge 
 
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