National Center for Youth Law

STRATEGIES

Joseph A. v. Bolson
also known as Joseph and Josephine A. v. Bolson, Joseph and Josephine A. v. Ingram and Joseph and Josephine A. v. N.M. Dept. of Human Services

This action, based on Title IV-E of the Social Security Act, was filed on behalf of children in New Mexico Department of Human Services (DHS) custody who were victims of foster care “limbo.” The case sought to establish their rights to reasonable and fair decision-making with regard to access to adoption, permanence, stability, and a family life.

Overview

FILE NO., COURT, AND DATE FILED

80-623 JB (D.N.M., July 25, 1980)

CITATIONS

575 F. Supp. 346 (D.N.M. 1982), vacated, 69 F.3d 1081 (10th Cir. 1995), reh’g denied, (Dec. 14, 1995), cert. denied, 517 U.S. 1190; 262 F.3d 1113 (10th Cir. 2001), superseded by 275 F.3d 1253 (10th Cir. 2002)

CLEARINGHOUSE REVIEW NO.

31,172

ATTORNEYS FOR PLAINTIFFS

Susan Lambiase
Children’s Rights, Inc.
330 Seventh Avenue, Fourth Floor
New York, NY 10001
(212) 683-2210
Fax: (212) 683-4015
slambiase@childrensrights.org

Robert D. Levy
Wissel & Levy, PA
20 First Plaza NW, Suite 306
Albuquerque, NM 87102
(505) 243-1733
Fax: (505) 243-5006

HISTORY AND STATUS

The district court ruled that while plaintiff children had no inherent constitutional liberty interest in permanence, stability, or placement for adoption, they may have constitutionally protected due process rights based upon property interests arising from their entitlements under federal or state law.

On September 23, 1983, the court approved a consent decree. The consent decree set forth a detailed scheme for restructuring New Mexico’s foster care system to establish permanent plans for foster children within six months of their entry into care. In addition, the decree contained provisions governing employee qualifications, social worker training, case planning, caseload size, adoptions, computerized records, citizen review boards, and monitoring of compliance.

Under constant monitoring pressure, DHS increased compliance, and in 1988 sought to be relieved from court supervision. The monitor’s January 1991 report revealed serious noncompliance in critical areas. In March 1991, the court held a hearing on two contempt motions. Despite DHS’s incorporation of the decree into state regulations, the court ruled that monitoring would continue until DHS had actually institutionalized the reforms in the New Mexico child welfare system.

The parties submitted findings of fact and conclusions of law to the Special Master in Fall 1992. On April 30, 1993, the Special Master found that defendants had substantially complied with the consent decree. On September 14, 1993, the district court adopted the findings of the Special Master and terminated the decree. On June 30, 1994, the court denied plaintiffs’ motion for reconsideration.

On July 18, 1994, plaintiffs appealed to the Tenth Circuit. On November 9, 1995, the court ruled in plaintiffs’ favor and reinstated the consent decree. The Tenth Circuit denied a petition for rehearing en banc, and, on May 13, 1996, the Supreme Court denied defendants’ petition for certiorari.

In January 1997, on plaintiffs’ motion, the Special Master revised his ruling and recommended that the court hold the state agency in contempt. In February 1998, the court entered a stipulated Exit Plan replacing the prior consent decree and setting forth additional improvements. A neutral monitor was appointed whose decisions were final and unappealable during 1998 and 1999. For the first time in this lawsuit, the monitor not only read case records, but also interviewed management and field staff.

After concluding that defendants were not committed to complying with the Exit Plan, plaintiffs filed a motion for contempt in October 1999. In response, defendants filed a motion to dismiss, arguing that the settlement was unenforceable due to Eleventh Amendment sovereign immunity and the doctrine of Younger abstention. The district court ruled in defendants’ favor dismissing the case. Plaintiffs appealed. The Tenth Circuit Court of Appeals affirmed and reversed in part, dismissing some claims based on the Eleventh Amendment and Younger abstention. In response to plaintiffs’ petition for rehearing, the court reversed itself and remanded the case to the district court, which reaffirmed the settlement’s enforceability.

In September 2003, the court approved a new Stipulated Settlement Agreement that encompassed a memorandum of understanding between the parties focused on finding permanent families for children with the goal of adoption. The agreement created Adoption Resource Teams that will meet with caseworkers to develop adoption plans until the child is adopted.

In November 2003, the court signed a new Stipulated Exit Plan (SEP) based upon the memorandum of understanding the parties signed in September. The SEP was focused on the state’s efforts to find adoptive homes and finalize adoptions for children who need to be adopted. External Expert Consultants met with case managers every 60 days in cases where a child’s permanency goal is adoption, to ensure adequate efforts are being made to recruit adoptive homes, finalize adoptions, and find permanent families for children who need them.

In February 2005, court oversight ended, and the case was concluded.