Migrant Kids Seeking Mental Health Care Win Class Certification

LOS ANGELES (CN) – Detained asylum-seeking children wanting consensual mental health care won class certification Thursday and can continue their case despite efforts by the Trump administration to dismiss the case and delay litigation due to the government shutdown.

(AP Photo/Hans-Maximo Musielik)

Ruling on the Justice Department’s request for a delay in a sharply worded 2-page order, U.S. District Judge Dolly Gee said the request is unwarranted because the court can order attorneys to respect existing deadlines even during a government shutdown.

“The prosecution of this action should not be further delayed because it concerns the health and welfare of minors in the custody of the Office of Refugee Resettlement,” Gee wrote, adding the administration should respond to the children’s claims by Jan. 9 and to discovery requests by Feb. 22.

Attorneys for both parties did not immediately respond to a request for comment.

The children claim the Office of Refugee Resettlement blocks their access to attorneys, gives them psychotropic drugs without familial consent and discriminates against children with disabilities.

Under the 21-year-old Flores settlement, children in federal custody must be released to relatives or other custodians, or placed in facilities within 20 days. Facilities housing the children must be “the least restrictive setting appropriate to the minor’s age and special needs.”

The children sought class protections and an opportunity to challenge placements in medical facilities.

In 28-page order also issued Thursday, Gee granted certification to five classes children who either have a mental disability, been given psychotropic drugs without consent, been detained for more than 30 days without notice or been blocked from being released to guardians.

The Trump administration argued the case should be dismissed because the children’s claims for relief under the Flores settlement are duplicative. Gee partly agreed, dismissing claims that she found can only be litigated in the ongoing Flores litigation.

However, Gee said the class can continue with claims the Office of Refugee Resettlement has failed to provide sufficient procedural safeguards for them to exercise their rights under Flores.

The exact size of the class is unknown, but likely includes hundreds of children.

In a third order issued Thursday, Gee said the standard for determining which children receive class protections will change. She modified the class definition by using the Rehabilitation Act standard instead of the Americans With Disabilities Act standard, which is broader in scope.

The Rehabilitation Act standard requires plaintiffs to show they were “denied services ‘solely by reason of’ [his or] her disability,” Gee wrote.

Her previous class certification order covered children “who have or will have a behavioral, mental health, intellectual, and/or developmental disability” and who will receive treatment while in federal custody because of their disabilities.

She said the modification doesn’t make the class representatives inadequate since children are placed in medical facilities when they require intensive mental health treatment they can’t receive in an outpatient facility.

The judge rejected the Trump administration’s argument that “it is unclear how each [of the children] is actually disabled or ‘otherwise qualified’” to represent the class, since it is undisputed the five class representatives have been transferred to an inpatient treatment center in Texas because of their mental health needs.

Finally, Gee denied the children’s request to initiate discover immediately, finding they hadn’t explained how the current stipulated schedule hurts them or what the scope of early discovery might be – the latter being prejudicial to the government, she said.

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