NOTICE: THE FOLLOWING MOTION WAS DENIED BY JUDGE TODD CAMPBELL. IT IS REPRINTED TO SHOW THE PITIFUL STATE OF THE ADOPTION SYSTEM IN THE STATE OF TENNESSEE AS WELL AS INEFFECTIVE JUDICIAL MONITORING OF THAT SYSTEM.IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN A., et al., )
)
Plaintiffs, ) Civ. Action No. 3:00-0445
)Judge Todd J. Campbell
v. )
)
PHIL BREDESEN, et al., )
)
Defendants. )
MOTION TO INTERVENE AS OF RIGHT PURSUANT TO F. R. C. P. RULE 24(a)(2),
OR ALTERNATIVELY MOTION TO INTERVENE BY PERMISSION
UNDER RULE 24(b)(2), OR, IN THE ALTERNATIVE ,AS AMICUS CURIAE
Pursuant to Rule 24 of the Federal Rules of Civil Procedure, attorney Michael A. S. Guth, on behalf of the class of all minors in the custody of the Tennessee Department of Children’s Services who are entering the adoption process or who are currently waiting for adoption (“Applicants”) respectfully moves this Court for an Order granting Applicants intervention as of right as Plaintiffs under Rule 24(a)(2) of the Federal Rules of Civil Procedure. The grounds for such motion are that the motion is timely, that the Applicants claim an interest relating to the subject of the action and are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest, and that Applicants’ interest is not adequately represented by the existing parties and their counsel.
Alternatively, Applicants respectfully move this Court for an Order granting Applicants
permission to intervene as Plaintiffs under Rule 24(b)(2) of the Fed. R. Civ. P. The grounds for such motion are that this motion is timely, that Applicants’ claims and the main action have a question of law or fact in common, and that intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.
In the event Applicants’ Motion to Intervene is denied, then Applicants request leave from the Court to file the attached Memorandum of Points and Authorities and Declaration as Amicus Curiae, but only to the extent that this Court is able and willing to redress the problems identified in the Memorandum. No purpose is served in filing an amicus pleading that is left unresolved by the court. This Motion is based upon the evidence contained in the Declaration of attorney Michael A. S. Guth, and exhibit attached thereto, on Applicants’ Memorandum of Points and Authorities in
support of their motion; and on all other papers and pleadings on file herein.
Respectfully submitted this 20th day of November, 2004.
____________________________
MICHAEL A. S. GUTH, Ph.D., J.D. (TN B.P.R. #093139)
Attorney for Plaintiffs in Intervention
116 Oklahoma Ave.
Oak Ridge, TN
37830-8604
e-mail: mike@@ michaelguth.com
phone: (865) 483-8309
Certificate of Service
I certify a copy of the Applicants’ Motion, Memorandum, and Declaration of Dr. Michael A. S. Guth were sent via first class prepaid mail to attorneys Douglas Gray and David L. Raybin, Plaintiffs’ attorneys, and Paul Summers, attorney general, on Nov. 20, 2004.
_______________________________
Michael A. S. Guth
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN A., et al., )
)
Plaintiffs, ) Civ. Action No. 3:00-0445
)Judge Todd J. Campbell
v. )
)
PHIL BREDESEN, et al., )
)
Defendants. )
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF APPLICANTS’ MOTION TO INTERVENE
I. STATEMENT OF FACTS
Too many children in the custody of the Tennessee Department of Children’s Services (DCS) are not being adopted due to the Department’s negligence and failure to reform its antiquated adoption processes: DCS regulations that prevent bonafide adoption agencies from receiving licenses, DCS staff failing to return long distance and local phone calls or e-mail messages from prospective adoptive parents, mandatory training for adoptive parents in a manner that insults their intelligence, failing to establish modern e-mail contact points within DCS for prospective adoptive parents, and refusing to allow members of the public to examine and critique DCS training materials.
In August 2004 through November 2004, various forms of egregious conduct by staff of DCS and their contractors became known to counsel Michael A. S. Guth. In September 2004 and October 2004, these facts and circumstances were brought to the attention of the Children’s Rights, Inc., attorneys who appear in this lawsuit [Douglas Gray and Corene Kendrick], to Andy Shookhoff -- the designated contact for the Technical Advisory Committee and monitor, and to the Commissioner and General Counsel of DCS. Each of these attorneys, monitor, and parties chose to do nothing about these egregious conditions causing injury and harm to the Applicant class. A short list of Applicant class representative problems can be enumerated as follows.
1. Caleb, age 15, is in DCS custody, and the official DCS web page of adoptable children identifies his caseworker as Nikki Harris (423) 493-5953. Nikki Harris has failed to return two phone calls from a prospective adoptive parent for Caleb. As of October 11, 2004, Nikki Harris has failed to respond to a prospective adoptive parent’s inquiry about Caleb for seven weeks. Applicants suffer when their assigned caseworkers are too incompetent to return phone calls from prospective parents inquiring about them.
2. After two weeks, DCS Commissioner Viola Miller was personally informed that Nikki Harris had not responded to the prospective adoptive parent. Miller apparently took no action; Nikki Harris is still listed as the caseworker for Caleb (15) as of Nov. 16, 2004. Applicants are being denied their right to a permanent family due to DCS caseworker incompetence or negligence and DCS Commissioner indifference to their plight.
3. After four weeks, the DCS Ombudsman received a complaint that Nikki Harris was not answering phone inquiries from prospective adoptive parents about Caleb (15). The DCS Ombudsman’s office failed to redress this complaint or respond back to the adoptive parent. Finally, after seven weeks from the initial inquiry, the adoptive parent reached Brian Tuverson, Director of the DCS REACTS program in Nashville. Brian Tuverson arranged for a caseworker (Mr. Kelly Buttram) to phone the adoptive parent within a couple hours and answer his questions about Caleb. Applicants suffer when the DCS Ombudsman’s office fails to assist adoptive parents having problems with DCS to overcome obstacles to adopting them.
4. Jeremy (Kyle), age 14, is an adoptable child in the custody of DCS. His caseworker is listed as Nikki Harris (423) 493-5953. For seven weeks, Nikki Harris has failed to return phone calls from a prospective adoptive parent interested in learning more about Kyle. Kyle remains in DCS custody unaware that his DCS-assigned caseworker is not responding to inquiries about him from prospective adoptive parents. Applicants suffer when their assigned caseworkers are too incompetent to return phone calls from prospective parents inquiring about them.
5. Kevin (age 13) is an adoptable child in the custody of DCS. His caseworker is listed as Mike Myers (865) 425-4463. Mike Myers, a team supervisor for DCS, failed to respond to an inquiry from a prospective adoptive parent. Another adoption caseworker in the Clinton office of DCS did return a phone call to the adoptive parent and took down a message with basic screening questions. After four weeks, no one from DCS contacted the prospective adoptive parent with the answers to these questions. Kevin remains in DCS custody without knowing that a prospective adoptive parent expressed interest in him. Incredibly, even after being called a third time and told that no one in his office had yet answered the questions about Kevin in over a month, Mike Myers still failed to return the phone call to the prospective adoptive parent. Applicants suffer when unprofessional conduct by a DCS supervisor sets a poor example for other adoption caseworkers in his unit. Applicants are harmed when DCS employs lazy staff and implements no performance evaluation process that corrects a persistent attitude of disregarding inquiries from adoptive parents.
6. Josh (age 15) is in the custody of DCS, and the official DCS web page lists his caseworker as Liz Beach (423) 913-2569. There is no “Liz Beach” or “Elizabeth Beach” located at that phone number, which is the Omni Visions office in Chattanooga. A message left on the Chattanooga office of Omni Visions’ answering machine inquiring about Josh was never returned. Counsel has subsequently learned that Liz Beach left Omni Visions months ago, yet more than two months after DCS was informed of the problem, as of Nov. 16, 2004, Liz Beach continued to be shown as the caseworker contact for Josh on the official DCS Internet web page. Applicants are harmed by DCS’s failure to post accurate caseworker contact information to their web page profiles and verify the information periodically.
7. Paul (turning 18 in December), is in the custody of DCS, and the official DCS web page lists his caseworker as Patricia Parker at DCS headquarters in Nashville with the REACTS program (800) 807-3228. Patricia Parker still had not responded by e-mail or phone to an inquiry about Paul from a prospective adoptive parent in over a month. Applicants are harmed when DCS staff fails to respond to inquiries from prospective adoptive parents.
8. Dustin, born 9/15/91, is shown on the DCS official web page as waiting for adoption. The web page indicates this profile was last updated on 11/15/04. His caseworker is shown as Anne Williams of Omni Visions in Knoxville at (865) 524-4393 x321. After five days, a phone message inquiring about Dustin was still not returned. Applicants are harmed when DCS staff and their private contractors fail to respond to inquiries from prospective adoptive parents.
9. Joseph, born 3/8/92, is a member of the Applicant class. Separate telephone inquiries about Joseph to his two DCS caseworker contacts, Kristin Sigmund and Susy Langley, shown on the official DCS web page, remained unanswered after five days. Applicants are harmed when DCS staff fails to respond to inquiries from prospective adoptive parents.
10. Jeremy, born 2/12/88, has a caseworker contact on the official DCS web page of Latoya Anderson at (731) 658-5141. After five days, Latoya Anderson had failed to return a phone inquiry about Jeremy to a prospective adoptive parent. Applicants are harmed when DCS staff and their private contractors fail to respond to inquiries from prospective adoptive parents.
11. David, born 4/16/87, will soon turn 18 and age out of the child welfare system. His caseworker contact on the DCS web page is Marie Peter (423) 634-6315. After five days, Marie Peter still had not returned a phone message inquiring about David from a prospective adoptive parent. Applicants are harmed when DCS staff and their private contractors fail to respond to inquiries from prospective adoptive parents.
12. For the total number of caseworkers called during August -- November 2004, the facts above illustrate a 66% lack of response rate. If we were to randomly call up caseworkers assigned to girls in the custody of DCS, we would find a similar 66% lack of response rate. DCS negligence or incompetence in failing to respond to adoptive parent inquiries causes harm to Applicants by forcing them to remain in the child welfare system longer than necessary. Some members of the Applicants are never adopted, even though DCS received inquiries about them from viable adoptive parents.
13. A prospective adoptive parent attended DCS-required foster care and adoptive Parents As Tender Healers (PATH) training classes taught by Omni Visions, Inc., of Knoxville. After the fourth class, the parent filled out a course evaluation indicating the class was boring. The trainer did not care whether the adults in the class were interested or bored. The entire focus of each session was on “putting in three hours time,” as if the prospective parents were on a prison sentence and had to pay their dues by attending a total 30 hours of DCS-approved training -- regardless of whether their time was wasted. When the Omni Visions training coordinator in Knoxville received this parent’s class evaluation, she called him and encouraged him not to come back for further classes. The Applicants suffer a shortage of available adoptive resources because of the caustic attitude of DCS and its contractors towards the training of adoptive parents. The Applicants suffer when the curriculum used to train adoptive parents in Tennessee is dumbed down to a level that insults many of these prospective parents’ intelligence and frequently results in them withdrawing from the training course. Applicants suffer when DCS training focuses primarily on foster care and largely ignores the separate and distinct issues confronting a child facing adoption.
14. DCS Commissioner Viola Miller was informed that the training coordinator had discouraged a prospective adoptive parent from continuing with the training classes, and Viola Miller said there was nothing she could do in this instance because the agency was private. In fact, the private agency has a justifiable fear of the DCS Commissioner, and one call from her would have redressed this problem and kept a prospective adoptive parent working within the system. Now he feels antagonistic towards DCS and its system. The Applicants suffer when prospective parents with excellent parenting skills, means, and ability receive no assistance from DCS to take part or remain in adoptive parent training classes. Applicants suffer when prospective adoptive parents with excellent credentials become antagonized toward DCS because of the way DCS treats them.
15. State Senator Tommy Kilby contacted Viola Miller directly by letter dated Sept. 3, 2004, about one of his constituent’s concerns that DCS was refusing to cooperate and share its PATH training materials and video tapes with a non-profit firm interested in conducting adoptive parent training classes in the senator’s district. Viola Miller ignored the matter for two months and then eventually referred it to her General Counsel, who adopted an obstructionist attitude of refusing to make documents available for inspection as required by the Tennessee Public Records Act. The Applicants are injured and harmed when DCS administrators at the highest levels disregard system-wide concerns of Tennessee state legislators about the state’s adoption process and adopt a belligerent attitude towards private agencies who are prepared to conduct adoptive parent training classes much better than DCS.
16. The PATH training required by DCS of both prospective foster care and adoptive parents is actually geared towards foster care parenting. There is a better alternative curriculum for adoptive parents used by most of our neighboring states, the Model Approach to Permanent Parenting (MAPP), but DCS remains intransigent and will not reform its training curriculum. The DCS training coordinator for the 15-county East Tennessee regional office of DCS in Clinton, TN, informed a prospective adoptive parent that her own PATH training classes are every bit as boring as the ones offered by Omni Visions. The Applicants are harmed when people expressing interest in becoming adoptive parents are told that the mandatory 30+ hours of training is going to be boring. The Applicant class is harmed when prospective adoptive parents become so bored with the mandatory training and other hurdles that DCS imposes on them that they lose interest altogether in adopting one or more members of the Applicants.
17. The ongoing settlement in the Brian A. federal class action requires, at page 29, Section IX. C(2), “Training classes shall be available beginning every 30 days in every region with individualized training as needed, at times convenient for foster care and adoptive parent applicants.” One or more adoptive parents contacted the Clinton, TN, 15-county regional office of DCS and spoke directly to the training coordinator, Heather Helton, to request individualized training. DCS refused to provide individualized training, refused to provide access to the training materials or video tapes used in PATH so they could study the materials on their own, and refused to conduct a series of training classes in Oak Ridge, TN. Despite the fact that Oak Ridge has a population greater than Oliver Springs and Clinton combined -- two towns where DCS has repeatedly conducted parent training classes -- DCS refuses to conduct training classes in Oak Ridge. Oak Ridge has no DCS-licensed private adoption agency and no organization that conducts foster care or adoptive parent training classes. The Applicants suffer when DCS refuses to conduct adoptive training classes in major population centers around the state and thus faces an acute shortage of adoptive resources in various counties, e.g., Anderson County and Oak Ridge have had a critical shortage of approved foster care and adoptive homes for more than two decades. Other counties of Tennessee have also had a chronic shortage of adoptive resources, thereby causing injury to Applicants. The Applicants suffer when DCS establishes a pattern and practice of refusing to offer individualized adoptive parent training even for people with obvious extenuating circumstances that prevent them from attending DCS training sessions.
18. Both the General Counsel of DCS and the training coordinator of the East Tennessee regional office of DCS have informed the undersigned counsel that they have no intention of offering individual training classes as needed. DCS contends that if it offers evening classes anywhere in the region (even an hour’s drive away), those classes eliminate DCS responsibility or need to provide individual training. In fact, when counsel informed the training coordinator that he could advise this court that DCS was not implementing the Brian A. settlement terms, she responded that “You are welcome to do that.” Applicants are harmed and injured by DCS’s unaccommodating attitude and “business as usual” approach to training classes at DCS field offices, where the settlement terms of the Brian A. lawsuit are now largely ignored or treated as a joke.
19. According to the Knoxville office of Omni Visions, Inc., there are over 8,000 children in the custody of the DCS, and over 2,000 children state-wide are eligible or nearing eligibility for adoption. The Brian A. federal class action lawsuit against DCS claims there are only 800 children waiting for adoption. Regardless of whether the correct number is closer to 800 or 2,000, the official DCS web page of adoptable children in Tennessee shows at any given time approximately 220 children. In contrast, as of Nov. 14, 2004, the Florida Dept. of Children and Families official web page lists 1,047 children with picture profiles waiting for adoption. Florida does not have a population five times as large as Tennessee. Applicants are harmed by DCS’s failure to post pictures of all of the adoptable children in its custody so that prospective parents might know about these children. Applicants are harmed that DCS posts profiles of only a small fraction of the available children in its custody waiting for adoption.
20. DCS is not making an effort to disclose the e-mail addresses of its caseworkers for adoptable children. The absence of e-mail address contact information discourages adoptive parents, who must otherwise make long distance calls over and over to caseworkers and seldom reach them in the office. Applicants are harmed that prospective parents have no toll free phone number or (free) e-mail address they can use to inquire about members of the Applicants.
21. In the first class of the PATH training taught by Omni Visions in Oak Ridge in August 2004, a video was shown in which a Black female elderly foster care parent said she sometimes asks herself “What am I doing?” The remark was meant to convey that even dedicated foster care parents can get discouraged by the negative responses they receive from their foster care children. When this woman spoke in the video, and her comment was repeated at the end of the video, the class erupted in laughter: they were laughing at the foster care parent and the way she talked, instead of showing sympathy for her plight. The trainer did nothing to correct or rebuke the audience’s reaction. Two Black women in the first class had come to the training with the intent of becoming foster care or adoptive parents. They felt offended that the largely White class would laugh at the Black foster care parent in the video, and they never came back to training after that first class. It is hard to believe any of these prospective parents would be sensitive to the needs of a foster care child, when they displayed incredible insensitivity to the plight of a foster care parent as well as the two Black women in the class. If one examines the type of people who enroll in DCS-sponsored training classes as well as organizations like Omni Visions that mimic the DCS training approach, the first impression is that the class comprises uneducated, average to below average intelligence people. Applicants are harmed when DCS makes no effort to enroll the best and the brightest citizens of Tennessee as prospective adoptive parents. Applicants are harmed by the fact that DCS never will attract high caliber people when the agency conducts its business with a bureaucratic, social worker-dominated mentality. Applicants are harmed when DCS’s training for trainer classes generate insensitive trainers who find nothing wrong with people laughing at the way others speak.
22. DCS is so desperate to find foster care parents and foster care homes that the agency sends out clear distressed signals that it will accept practically anyone who sits through the 30-hours of training. Applicants are harmed that the DCS distress has led to a “scraping the bottom of the barrel” approach to recruiting foster care and adoptive families. None of the counsel or parties involved in this action would want the typical person who now shows up for DCS parent recruiting sessions to be his or her parent. Applicants are harmed when DCS’s existing adoptive parent recruitment practices attract adults primarily from the lower income and lower middle class income groups.
23. The following adoptable children (or in some cases now legal adults of age 18) were in the custody of the DCS, and some of them have been in custody for years. None of their pictures or profiles are shown on the official DCS web page for adoptable children: Thomas, date of birth 9/4/90; Randy, 3/17/89; Telvin, 2/24/93; Michael, 9/24/90; Careece, 6/12/90; Charleslina, 5/27/92; Chris, 8/8/93; Rowronica, 10/4/89; Jessica, 1/5/86; Kristalena, 5/4/89; Justin, 12/6/92; Lance, 9/4/87; Brandy Bd.o.b. unknown, Chattanooga area; Dena, 3/24/88; Oscar B d.o.b. unknown; Richie, 4/26/94; Luther, 2/13/93; Laquan, d.o.b. unknown; Kenya, 8/23/90; Kemesha, d.o.b. unknown; Joshua, 4/17/90; Genesis, 6/8/91; Nathaniel, 8/10/90; Terry, 8/26/86; Lisa, 6/4/86; Miracle, 5/6/91; Dennis, 3/13/90; Martrell, 5/2/91; Terrance, 3/17/89; Keondra, 12/21/86; Charles, 2/17/88; Shannon, 3/2/85; Jonathan, 8/24/87; Mariah, 1/28/85; Cherylesa, 7/7/94; Joshua, 1/12/92; Ashley, 12/31/86; Brianna, 6/18/98; Jessica, 5/1/89; Aaron, 7/23/88; Chuck, 5/11/86. Applicants are harmed by DCS’s failure to show these profiles of adoptable children as well as others who do not appear on the DCS web page.
24. Every year, children age out of DCS custody without being adopted. They are left with no income, no family support, no long-term housing solution, and little or no support from DCS. Tennessee’s DCS does not even show their pictures as remaining interested in adoption as legal adults, unlike other states. Applicants are harmed when DCS abandons them without resources and refuses to continue to seek placements for those who have reached age 18, unlike other states which continue efforts to place 18 year olds from the foster care program.
25. DCS internal regulations require any adoption agency in Tennessee to employ a “Caseworker Supervisor,” who has a master’s degree in Social Work or a master’s degree in another field plus three years of adoption experience. This DCS regulation is inhibiting the formation of adoption agencies that could address the problem of so many DCS adoptable children lingering in custody or aging out of the system with no resources. The Applicants are directly impacted by DCS’s refusal to waive or modify its regulations to enable new non-profit adoption agencies, with missions of placing older children age 13 - 18 into adoptive homes, to obtain licenses to operate in Tennessee.
26. The U.S. Department of Health and Human Services sponsors a web page for adoptable children in the custody of state child welfare agencies at www.adoptUSkids.org. All fifty states subscribe to this web page and provide profiles of their adoptable children, including Tennessee. Of the 230 children shown as waiting for adoption on the Tennessee DCS adoption web page, DCS chooses to send to www.adoptUSkids.org only 131 profiles as of Nov. 18, 2004, or roughly only 55 percent of the profiles shown on DCS’s own web page. Applicants are harmed when lazy DCS caseworkers fail to utilize all of the free resources available to them to secure permanent adoptive homes for the Applicants. Applicants are further harmed when DCS erects barriers to information, in violation of the Interstate Compact on the Placement of Children, that would prevent out-of-state residents from conducting a national search of adoptable children and learning about members of the Applicants’ class.
27. A private non-profit organization operates a website at www.adoption.com that facilitates adoptive parents performing a national search of adoptable children. Various state child welfare agencies can post profiles of children on that site for no charge. On Nov. 18, 2004, the www.adoption.com database was searched for members of Applicants class using two separate searching algorithms. In both cases, a grand total of three profiles were shown. Applicants are injured and harmed when DCS caseworkers are so lazy that they cannot take the time and trouble to create and post profiles of the Applicants on www.adoption.com, one of the most widely used resources on the Internet for adoption information.
II. INTERVENTION AS OF RIGHT
The Sixth Circuit interprets Fed. R. Civ. P. Rule 24(a) as establishing a four-prong test that must be satisfied in order for the district court to grant intervention as of right: (1) the application for intervention is timely; (2) the applicant has a substantial legal interest in the action; (3) the applicant's ability to protect that interest may be impaired in the absence of intervention; and (4) the existing parties do not adequately represent the applicant's interest. United States v. Tennessee, 260 F.3d 587, 591 (6th Cir. 2001) (citing Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)). The applicant has the burden of demonstrating the four prongs, and the failure to satisfy any of the four prongs prevents the applicant from intervening as of right. Linton v. Commissioner of Health & Environment, 973 F.2d 1311, 1317 (6th Cir. 1992).
A. The Timeliness and Purpose Prongs
The Sixth Circuit has held that the following five factors should be considered in determining timeliness: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention. Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)
The Applicants’ purpose in intervening is to enforce the settlement terms of the Brian A. class action to an extent that all problems identified in this Memorandum are resolved against DCS and in the Applicants’ favor. This Motion is timely, because the cause of action did not arise until August 2004 and continued through November 2004, the month in which this Motion was filed. The intervenors cannot be held to have waited too long to file their motion, because intervenors reasonably expected DCS to adhere to the Brian A. settlement terms. Intervenors relied on DCS’s numerous apologetic statements appearing in state newspapers about their sincere desire to reform the agency at the time the settlement was announced. It is only when individual cases were investigated beginning in August 2004 that Applicants learned DCS was giving only lip service to genuine reform.
The existing parties and their counsel will not be prejudiced by this intervention. If Applicants file a new class action lawsuit in Knoxville district court against DCS, then discovery would be open, and Applicants would opt out of any Brian A. settlement terms that perpetuated conditions under which the Applicants are exploited as a means of justifying the existence of, and providing ongoing employment to, negligent and incompetent DCS workers and senior administrators. However, by intervening in this action, Applicants will be bound by the Brian A. settlement terms and will impose no additional burden on the parties than that which they have already agreed and executed in writing. Intervention by the Applicants will not delay the proceedings; it will increase the speed with which DCS complies by providing an effective voice to Applicants that they have thus far not enjoyed.
B. The Other Prongs
If the district court denies the proposed intervenors' motion, then their ability to protect their interest would be impaired. See Tennessee, 260 F.3d at 591. The settlement terms in Brian A. are binding on the Applicant class, and if they were forced to file a competing federal class action, there would be an overlap of the remedies in the two courts, and Applicants would move aggressively to prevent the issue preclusive effect of Brian A. to limit their ability to redress grievances concerning the DCS adoption process. If Applicants were forced to file a competing class action, Applicants would enforce the U.S. Supreme Court’s guidance in Matsushita Electrical Industrial Co., Ltd. v. Epstein, 116 S. Ct. 873 (1996) upon this court that each and every member of the Applicant class must be mailed a notice of any settlement in Brian A. and must be given the opportunity to opt out before the Brian A. settlement would have any claim preclusive effect on the class.
While the parties to a class action start out in an adversarial posture, once they reach the settlement stage, incentives have shifted and there is the danger of collusion. See In re General Motors Corp., 55 F.3d 768, 778 (3d Cir. 1995) (noting that class actions can become a vehicle for collusive settlements); see also Deborah R. Hensler et al., Class Action Dilemmas: Pursuing Public Goals for Private Gain, 27 (RAND Institute for Civil Justice, 2000) (same); Michael A. S. Guth, An Invitation for Class Action Attorneys to Engage in Unprofessional Conduct, available on the Internet at http://michaelguth.com/classactions.htm. Class counsel, for instance, might settle claims for significantly less than they are worth, not because they think it is in the class's best interest, but instead because they are satisfied with the fees they will take away. See Rand v. Monsanto Co., 926 F.2d 596, 599 (7th Cir. 1991) ("The representative and counsel may be tempted to sell out the class for benefits to themselves.").
Intervenors counteract any inherent objectionable tendencies by reintroducing an adversarial relationship into the settlement process and thereby improving the chances that a claim will be settled for its fair value. See, e.g., Crawford v. Equifax Payment Services, Inc., 201 F.3d 877, 882 (7th Cir. 2000) (reversing an order approving settlement based on an intervenor's appeal); General Motors, 55 F.3d at 803 ("Where there is an absence of objectors, courts lack the independently-derived information about the merits to oppose proposed settlements."). Intervenors have the potential to play this important role even in the numerous valid class actions. Cf. Crabill v. Trans Union, L.L.C., 259 F.3d 662, 665 (7th Cir. 2001); Rand, 926 F.2d at 599.
III. INTERVENTION BY PERMISSION
Fed. R. Civ. P. Rule 24(b) provides “upon timely application anyone may be permitted to intervene in an action . . . when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
The issues of fact and law raised in Section I of this Memorandum fall within the broad outline of the Brian A. settlement. Consequently, Applicants have met their burden of demonstrating common questions of law and fact. This Memo does not merely rehash allegations contained in the original Complaint in this case; rather, it provides new directly relevant evidence of DCS torts occurring in August 2004 -- November 2004 that were unobserved by any of the parties or counsel in the Brian A. lawsuit.
The principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties' rights. United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994); 7C Wright, Miller & Kane, Federal Practice and Procedure 1913, at § 379. In this case, the proposed intervention would cause no delay. Attorney Michael Guth already has received and read the Joint Motion Plan Matrix and the Settlement Stipulations of the Contempt Motion as well as the original Settlement. He will not have to be brought up to speed on the current status of the lawsuit.
Although the adequacy of protection is only a minor variable in the Rule 24(b) decision calculus, it is not an illegitimate consideration. See United States Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (noting that adequacy of representation is a relevant factor in permissive intervention analysis); Tachna v. Insuranshares Corp., 25 F. Supp. 541, 542 (D. Mass. 1938) (stating that Rule 24 does not limit the inquiry to only whether intervention will delay or prejudice the adjudication of the parties' rights). In the Brian A. case, the existing Plaintiffs’ counsel do not adequately represent the interests of the Applicants. Their actions speak louder than their words.
The Children’s Rights, Inc., attorneys for the Plaintiffs have had the gist of this Memorandum for months, and they have taken no action in response to it. Andy Shookhoff, the so-called monitor and point of contact for the Technical Assistance Committee, has had the gist of this document for over a month and has been impotent to address even one point. In essence, the monitor, the existing attorneys, the DCS Commissioner, and the DCS General Counsel have all “duly noted” the Applicants’ grievances and then did nothing.
Applicants would call this Court’s attention to the U.S. Supreme Court case DeShaney v. Winnebego County Dept. of Social Services, 489 U.S. 189 (1989), in which a father physically abused his young son even causing permanent brain injuries. The child welfare workers involved in DeShaney were aware of the abuse and did nothing; they “duly noted” the abuse on their forms and reports and took no action. The Applicants cannot be expected to tolerate this do-nothing attitude when their fundamental rights to permanent families are adversely affected.
None of the existing Plaintiff attorneys can advocate for the Applicants as well as Michael Guth. Unlike Michael Guth, none of the Plaintiffs’ attorneys have attended Tennessee DCS PATH training and learned first-hand just how awful that training is. Second, unlike Michael Guth, none of the Plaintiffs’ attorneys are prospective Tennessee adoptive parents seeking to adopt a child from the child welfare system. A Tennessee adoptive parent can see how the child welfare system works
from within, not just from viewing the system externally. Third, unlike Michael Guth, none of the Plaintiffs’ attorneys have non-legal businesses that bring them into contact with DCS staff on a weekly basis.
The great fallacy of the Plaintiffs’ attorneys is that they think they know the current status of the child welfare system in Tennessee by looking “at the big picture,” as they frequently mention. They consider it a matter of pride that they do not get involved in individual cases, e.g., a 14-year old Shelby County girl in the custody of DCS. But this is precisely the wrong attitude.
No pilot would check a jet just by looking at its overall appearance; no car mechanic would check an engine just by looking at “the big picture” of how the car travels on the road. These attorneys know practically nothing about the day-to-day operation of DCS without putting in the time and energy required to investigate successfully to completion numerous individual cases. Thus all of the issues mentioned in Section I catch the Plaintiffs’ attorneys by surprise. The Applicants want and need an attorney to represent them who is not afraid to get his hands dirty in the soiled business of DCS, not merely a class attorney who just looks at the big picture.
IV. AMICUS CURIAE, OTHER ROLES
In an ideal world, the Plaintiffs attorneys would address the concerns raised in this Memorandum and obviate the need for intervention. For whatever reasons, they have chosen not to take constructive steps to resolve these concerns. Thus, the Applicants have a choice of letting the system continue “business as usual” or pursuing genuine reform that is translated into a change measurable at the level of individual caseworkers. If the court wishes to conduct a hearing on whether DCS is actually making a good faith effort to comply with this court’s orders regarding settlement, then counsel Michael Guth would welcome the opportunity to deliver oral arguments at such a hearing as amicus curiae.
Alternatively, attorney Michael Guth would be willing to serve on or work with the Technical Assistance Committee. Dr. Guth has a busy schedule with teaching undergraduate and graduate courses each term as well as practicing law. However, he is dedicated to helping the Applicants who have no voice in the current proceedings.
Respectfully submitted this 20th day of November, 2004.
____________________________
MICHAEL A. S. GUTH, Ph.D., J.D. (TN B.P.R. #093139)
Attorney for Plaintiffs in Intervention
116 Oklahoma Ave.
Oak Ridge, TN
37830-8604
phone: (865) 483-8309
ON MARCH 2, 2006, JUDGE CAMPBELL SIGNED AN ORDER GRANTING THE PLAINTIFFS' COUNSEL $146,963.37 IN ATTORNEY FEES, PLUS MORE THAN $10,000 IN OUT OF POCKET EXPENSES. THIS ORDER IS AN APPALLING WASTE OF TAXPAYER DOLLARS ON DO-NOTHING ATTORNEYS WHO EXPLOIT THIS LITIGATION TO LINE THEIR POCKETS BUT ACCOMPLISH VERY LITTLE FOR THE CHILDREN IN THE STATE'S CUSTODY.
COMMENT (May 5, 2006) FROM KNOXVILLE REGIONAL DIRECTOR OF OMNI VISIONS, INC.
