United States District Court, E.D. Arkansas, Western Division
KATELYN WEBB, as guardian and next friend of K.S. and D.S.; and JERIMEY LAY and TABITHA LAY, as guardians and next friends of R.L. and C.L. on behalf of themselves and all others similarly situated, PLAINTIFFS
CHELSEA SMITH; STACY HOUCK; MISCHA MARTIN; and CINDY GILLESPIE individually and in their official capacities, DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
parents of children taken into temporary protective custody
by the State of Arkansas bring this class action against
state officials of the Division of Children and Family
Services of the Department of Human Services
(“DHS”) in their individual and official
capacities alleging violations of the First, Fourth, and
Fourteenth Amendments to the United States Constitution under
42 U.S.C. § 1983. The state officials have filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and (6). For the following reasons, the motion is
granted in part and denied in part.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
plaintiffs allege three categories of federal claims: (1)
Webb and the Lays claim separately from the class that the
seizures of their children were unconstitutional; (2) Webb
and the Lays claim separately from the class that they were
deprived of an opportunity to be heard in a timely manner
after the seizures; and (3) Webb and the Lays claim on behalf
of themselves and the proposed class that the Arkansas
statutes governing the provision of post-deprivation hearings
to parents of seized children are constitutionally deficient.
The statutes at issue are Ark. Code Ann. § 12-18-1001,
which authorizes taking children into protective custody for
up to 72 hours without a hearing, and Ark. Code Ann. §
9-27-314, which governs the pertinent court procedures.
amended class action complaint alleges the following facts.
Katelyn Webb is a mother of two. On June 28, 2017, a juvenile
court jailed her for contempt and DHS seized her children.
Webb was released from jail on July 3. Document #1-2 at 61.
Chelsea Smith, a Family Services Worker, petitioned the court
on July 5 for an ex parte order for emergency custody. Smith
alleged that Webb was incarcerated and that no relative or
friend was willing or able to take temporary custody of the
children. The court entered the order on July 5 and set a
probable cause hearing for July 12. Smith sent a text message
to Webb on July 11 informing her that the court cancelled the
hearing. The court reset the hearing for July 20. Webb
appeared and informed that court that she did not want
appointed counsel. The court continued the hearing until July
26, when the court found that probable cause existed for
removal of the children from Webb's custody at the time
they were seized. The court did not find that the children
were neglected and restored custody to Webb.
and Tabitha Lay have three children. On May 1, 2017, DHS
seized the children based on a suspicion of abuse or neglect.
Stacy Houck, a Family Services Worker, petitioned the court
on May 3 for an ex parte order for emergency custody. The
court entered the order on May 5 and set a probable cause
hearing for May 8. The hearing did not conclude on May 8 and
the court ordered that the children be returned to Tabitha on
May 10 unless the attorney ad litem objected. The attorney ad
litem objected and the court set the conclusion of the
hearing for May 12. After the hearing, the children were
returned to Tabitha pursuant to a safety plan by which the
Lays were to keep DHS apprised of the children's
whereabouts. Jerimey was not permitted to have any contact
with the children and was not allowed to stay at the home.
Gillespie is the Director of DHS. Mischa Martin is the
Director of the Division of Children and Family Services. The
amended class action complaint alleges that Gillespie and
Martin approved and ratified the actions of Smith and Houck,
and failed to properly train and supervise DHS employees.
defendants maintain that the plaintiffs do not have Article
III standing. The “irreducible constitutional
minimum” of standing consists of three elements.
See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). “The
plaintiffs must have (1) suffered an injury in fact, (2) that
is fairly traceable to the conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547, 194 L.Ed.2d 635 (2016). The plaintiff has the
burden of establishing these elements, which at the pleading
stage may be met by clearly alleging facts demonstrating each
element. Warth v. Seldin, 422 U.S. 490, 498-99, 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975). It is established that
parents have a fundamental right to the custody of their
children and the deprivation of that right is an injury in
fact. The issue concerns the second element. The defendants
argue that they did not cause the injuries the plaintiffs
amended complaint alleges that DHS seized the plaintiffs'
children prior to the juvenile courts' ex parte orders.
Then, post-deprivation hearings were not held in a timely
manner. The defendants note that they were not present at any
hearings, nor do they have the authority to cancel or
schedule hearings. Document #17 at 3. However, the seizure of
the children did lead to the court proceedings, the amended
complaint alleges that the seizure of the Lays' children
was unlawful, and the amended complaint alleges that Smith
did not petition the court for emergency custody within the
time required under Arkansas law. “At the pleading
stage, general factual allegations of injury resulting from
the defendant's conduct may suffice.”
Lujan, 504 U.S. at 561, 112 S.Ct. at 2137. The
alleged injuries can fairly be traced to the defendants.
Based on the allegations in the amended complaint, the
plaintiffs have Article III standing to seek damages for the
seizures of their children and the alleged lack of due
process following those seizures.
the plaintiffs have standing to seek damages for the seizures
of their children and the lack of due process, it is not
clear that they have standing to challenge the
constitutionality of the statutes at issue. The third element
of the standing test-redressability-presents a hurdle to them
because “[t]he alleged injury-[Arkansas's]
temporary removal of their children-has already occurred and
will not necessarily occur again.” Doe v.
Kearney, 329 F.3d 1286, 1292 (11th Cir. 2003). In
Kearney, the court found that the redressability
element was met because the record indicated the likelihood
that the plaintiffs would encounter similar state action
under the statute in the future. Id. at 1293.
Nothing of the sort is alleged here.
redressability issue is closely related to a second issue
that the parties have not raised but which the Court has an
obligation to raise sua sponte, and that is the
issue of mootness. The plaintiffs' challenges to the
constitutionality of Ark. Code Ann. § 12-18-1001 and
§ 9-27-314 raise the question of whether there is a live
case or controversy, as well as whether the plaintiffs have
established redressability. See Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016).
Article III prohibits a court from hearing claims that are
moot. Life Investors Ins. Co. of Am. v. Fed. City Region,
Inc., 687 F.3d 1117, 1121 (8th Cir. 2012). “For a
declaratory judgment to issue, there must be a dispute which
‘calls, not for an advisory opinion upon a hypothetical
basis, but for an adjudication of present right upon
established facts.'” Ashcroft v. Mattis,
431 U.S. 171, 172, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977)
(quoting Aetna Life Ins Co. v. Haworth, 300 U.S.
227, 242, 57 S.Ct. 461, 465, 81 L.Ed. 617 (1937)); see
also MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118,
126-33, 127 S.Ct. 764, 770-75, 166 L.Ed.2d 604 (2007)
(explaining the case-or-controversy requirement as it relates
to the Declaratory Judgment Act). “Past exposure to
illegal conduct does not in itself show a present case or