Judge will not reconsider dismissal of NC foster care lawsuit

A federal judge has denied plaintiffs’ request to reconsider a September order dismissing a lawsuit challenging conditions in North Carolina’s foster care system.

US District Judge Matthew Orso issued an order Tuesday rejecting the request to revisit last fall’s decision from fellow US District Judge Frank Whitney.

Whitney had rejected the case based on the “lack of next friend standing.” That meant the adults who filed the suit did not have close enough relationships with foster children to represent them in court.   

In seeking reconsideration of Whitney’s ruling, the plaintiffs relied on a high-profile 4th US Circuit Court of Appeals precedent related to the war on terror.

“Plaintiffs argue the Court’s conclusion was based on ‘a narrow and limited interpretation’ of Hamdi v. Rumsfeld … because Plaintiffs’ case is an example of the hypothetical ‘different case’ referenced in Hamdi where the party in interest ‘has no significant relationships,’” Orso explained in Tuesday’s order.

“In Hamdi v. Rumsfeld, a federal public defender and private citizen filed petitions for a writ of habeas corpus as ‘next friend’ of the defendant, who was captured and detained as an alleged enemy combatant during ongoing United States military operations,” Orso wrote. “The district court concluded that the case was properly filed by the public defender as next friend. The Fourth Circuit reversed the order of the district court and remanded with directions that the defendant’s cases be dismissed for lack of subject-matter jurisdiction.”

“In arriving at its holding, the Court found that in order to have standing, a next friend must have a significant relationship with the real party in interest,” the court order continued. “The Court noted in dicta that the Court did ‘not have … the situation of someone who has no significant relationships’ and that ‘[i]f [the Court] did, this might be a different case.’”

“Turning to Plaintiffs’ first argument, this Court concludes that the Court did not clearly err in its application of Hamdi,” Orso wrote. “Plaintiffs magnify the Fourth Circuit’s ‘different case’ language in their motion, equate the dicta to a holding, and attempt to reargue this point already asserted in Plaintiffs’ opposition to defendants’ motions to dismiss.”

“This Court cannot find a clear error of law based on — as the Plaintiffs point out — a mere ‘forecast’ from the Fourth Circuit that it might rule differently in a future case with facts different from Hamdi,” Orso added.

“As Hamdi notes, ‘[a] federal court is powerless to create its own jurisdiction,’” the court order explained. “Because this Court does not find a clear error of law relating to the Court’s Order of dismissal, the Court’s Order stands, and this Court lacks subject-matter jurisdiction under Hamdi.”

Orso’s finding blocked him from addressing the rest of the plaintiffs’ arguments, including the claim that the previous ruling “results in manifest injustice.” The judge did not appoint a guardian ad litem to represent the children in the lawsuit.

“Hamdi makes clear that, ‘[t]he question of next friend standing is not merely ‘technical.’ … Rather, it is jurisdictional and thus fundamental,’” he wrote. “This Court, therefore, lacks jurisdiction to consider this or any other issue in the case, including appointing a guardian ad litem.”

Plaintiffs filed paperwork in October seeking reconsideration of Whitney’s ruling.

“This is that ‘different case’ referenced by the Fourth Circuit in Hamdi,” plaintiffs’ lawyers wrote. “The foster children in State custody cannot bring suit directly because of their minority status and must rely on next friends to bring suit on their behalf. Unfortunately, those children’s access to adult allies is substantially constrained by systemic failures perpetuated by Defendants and Defendants’ affirmative steps to prevent the minor Plaintiffs in this case from developing or maintaining significant relationships.”

“The Court’s dismissal of the Amended Complaint without appointing a representative or issuing another appropriate order to protect the minor Plaintiffs’ interests results in manifest injustice by insulating serious constitutional claims from any judicial review based on State-engineered isolation within the foster care system,” the court filing continued.

Adults in the case titled Bolch v. Cooper relied on “next friend” relationships with 13 foster children to file suit against the state and departments of social services in Mecklenburg, Gaston, Johnston, Davidson, Harnett, Rockingham, and Randolph counties.

“The Court finds the next friends, who the minor Plaintiffs appear by, have not shown they have the requisite significant relationship for next friend standing,” Whitney wrote in a nine-page order issued Sept. 25. “Therefore, the Court finds it lacks subject-matter jurisdiction to hear this case.”

Whitney did not address other arguments state and local defendants put forward to have the case dismissed.

“Plaintiffs allege ‘North Carolina’s foster care system has been operating in a state of crisis for years’ and ‘Defendants’ ongoing failures place foster children at significant risk of serious harm in violation of their rights under federal law and the U.S. Constitution,’” Whitney wrote.

“Defendants all seek dismissal of Plaintiffs’ Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction because the next friends cannot bring suit on their behalf,” the judge added.

“Here, the Court agrees with Defendants and the Court finds the next friends fail to satisfy the significant relationship prerequisite for next friend standing,” Whitney explained. “To start, none of the next friends are current foster parents of the minor Plaintiffs. In fact, it is unclear whether Daria Barazandeh, Veronika Monteleone, Kari Danforth, and Kimberly Crothers have met or communicated with the minor Plaintiffs they appear as next friends for.”

“Although Plaintiffs conclusory allege all the next friends acquainted themselves with the allegations regarding the minor Plaintiffs they appear as next friends for and that all the next friends are dedicated to the minor Plaintiffs’ best interests, that is not enough for the significant relationship requirement,” the judge added.

“The closest calls are Steven Bolch, Anne Richey, and Jackson Albert. According to the Amended Complaint, all three have met and either fostered or were members of the foster family of the minor Plaintiffs they appear as next friends for, respectively J.C., S.T., and R.S.,” Whitney wrote. “But, the minor Plaintiffs do not still reside with Steven Bolch, Anne Richey, and Jackson Albert. Also, the Amended Complaint does not elaborate on their present-day relationships.”

“Notably, the Court notes at least some of the minor children appear to have significant relationships with adults who are not named next friends in this case,” the court order continued. “For example, it appears S.M., L.M., and H.M., who appear through their next friend Kari Danforth, who is seemingly a stranger, have grandparents who are involved in their lives.”

“Considering Fourth Circuit precedent, the Court finds it lacks subject-matter jurisdiction to hear this case,” Whitney wrote. “The Court has great sympathy for the minor Plaintiffs and was truly troubled by the allegations in the Amended Complaint. However, it does not appear the next friends have the requisite significant relationships required for next friend standing.”

“While the Fourth Circuit and United States Supreme Court may expand next friend standing to eliminate or modify the significant relationship requirement, it is not this Court’s place to do so,” he added.

“Additionally, the Court is mindful of the Fourth Circuit’s warning that the significant relationship requirement discourages ‘those with strong views to seek in federal court what they could not otherwise obtain – namely, the vindication of objectives better suited to political than judicial resolution,’” Whitney explained. “While the next friends seem knowledgeable about the foster care system and motivated to improve it, this further lends support to finding the significant relationship requirement for next friend standing is not met here.”

The lawsuit originally filed in September 2024 alleged North Carolina’s foster system has been operating in a state of crisis for years, shuffling children between placements with “disturbing frequency.”

According to the lawsuit, foster children in North Carolina are placed into institutions at twice the national average, ranking in the bottom 10 states for placement stability in 2021.

“Judge will not reconsider dismissal of NC foster care lawsuit” was originally published on www.carolinajournal.com.