Michael S. Sorgen (State Bar No. 43107) Andrea Adam Brott (State Bar No. 121288) LAW OFFICES OF MICHAEL S. SORGEN 22 Second Street, 6th Floor San Francisco, CA 94105 (415) 543-5805 Darren Kessler (State Bar No. 114986) LAW OFFICES OF DARREN J. KESSLER 6306 Eureka Avenue Suite #2 El Cerito, CA 94530 (510) 524-7750 Attorneys for Plaintiffs Brad Dacus (State Bar No. 159690) THE RUTHERFORD INSTITUTE Western Regional Office 2710 Gateway Oaks Drive Suite #212 Sacramento, CA 95833 (916) 464-6299 Of Counsel UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LAURIE Q., ANGEL L., MEGAN W., CASE NO.: CHRISTINA T., REBECCA T., JESSE B., KENDRA G., and CHERIDA L., CLASS ACTION FOR EQUITABLE AND each by guardian ad litem, MONETARY RELIEF FOR VIOLATION individually and on behalf of OF CIVIL RIGHTS others similarly situated, ______________________________ Plaintiffs, JURY TRIAL DEMANDED vs. DONNA SHALALA, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SEVICES; CONTRA COSTA COUNTY; and DOES 1-10, Defendants. _____________________________  INTRODUCTION 1. This case involves the systematic theft of millions of public dollars from disabled and sick children by CONTRA COSTA COUNTY ("THE COUNTY"). Federal funds to which these children were entitled to help them cope with and/or overcome these disabilities and special needs were instead seized by THE COUNTY and illegally used for purposes unrelated to the children. To perpetuate the flow of these funds, THE COUNTY delayed and impeded the adoption of these children in violation of their fundamental Constitutional rights and contrary to federal and state law. DONNA SHALALA, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ("THE DEPARTMENT") violated federal law by failing to enforce its own policies when it allowed THE COUNTY to serve as fudiciary or representative payee for these children without the scrutiny required by law. 2. Plaintiffs were or are foster children under the care and custody of THE COUNTY. All plaintiffs and their care providers are citizens of the United States and residents of THE COUNTY. Due to their disabilities and special needs, plaintiff children were entitled to receive Supplemental Security Income ("SSI") benefits and/or Adoption Assistance Program ("AAP") benefits. Plaintiffs bring this action for equitable and monetary relief against THE COUNTY because it seized, misappropriated, and assigned their benefits in violation of federal law and without due process. By intentionally and unlawfully delaying or impeding the adoption of these children, THE COUNTY deprived them of their constitutional and statutory rights to stable family relationships. Consequently the children have suffered emotional distress, mental anguish, and economic harm. Based on past experience and dealings with THE COUNTY, Plaintiffs fear reprisal and retaliation based on their involvement n this case.  3. A qualified representative payee must be seelected to receive, expend, and account for the SSI benefits on behalf of the children beneficiaries. This payee must use the SSI benefits to provide for the immediate and long-term needs of the beneficiaries pursuant to the Social Security Act ("The Act"), 42 USC  1382. The payee is further required to place unspent funds in an individual interest bearing account and to provide an accurate annual accounting of that trust. As a participant in public programs that provide aid to children with disabilities, THE COUNTY received federal financial assistance in paying for the care of Plaintiffs within the meaning of the Rehabilitation Act, 29 U.S.C.  794. THE COUNTY, acting as the SSI payee for Plaintiffs, violated federal regulations by failing to place benefits in such individual trusts, by commingling these benefirs in a general fund of THE COUNTY, by failing to give notice of the benefits, and by unlawfully using the SSI funds to reimburse itself for foster care services which it is legally obligated to provide. THE COUNTY sought reimbursement only from children entitled to SSI and AAP benefits and thereby intentionally discrimniated against those children. 4. Under the Act, disabled children who qualify for SSI benefits automatically qualify for AAP benefits as well. AAP benefits as well. AAP benefits enable adopting parents to meet the special needs of their children as determined by agreement between the adoopting parent and THE COUNTY. Payments are based on the individual circumstances of both the child and the adopting parent and may be negotiated up to the state-approved foster care rate for which child would have been eligible while in foster care. THE COUNTY violates federal regulations by failing to provide notice of the availability of AAP benefits to eligible children and by refusing to apply the correct standard in detemining a benefit amount up to the statutoty foster care rate. Plaintiffs who were aware of SSI and AAP benefits repeatedly requested, by and through their care providers and adoptive parents, that they receive these benefits. THE COUNTY refused to honor these request and unlawfully withheld these funds from the intended beneficiaries.  5. Plaintiffs bring this action against THE DEPARTMENT, for its failure to follow proper procedures when appointing THE COUNTY as representative payee for the children's SSI benefits. Indeed, THE DEPARTMENT routinely violated federal regulations by failing to follow the mandated order of preference and by automatically appointing THE COUNTY as payee. THE DEPARTMENT deprived minors of their constitutional right to due process by failing to notify Plaintiffs of their right to appeal the selection of THE COUNTY as their payee. By negelcting to require regular accounting from THE COUNTY, THE DEPARTMENT acquiesced in and condoned THE COUNTY'S illegal acts and caused the Plaintiffs to suffer monetary and equitable losses as well as personal damages. JURISDICTION 6. Jurisdiction is conferred upon this court by 28 U.S.C.  1331, 1343(a), and 1361, to enforce federal, state, and constitutional civil rights protected by 42 U.S.C.  1983. The Court has jurisdiction over claims arising under the Social Security Act pursuant to 42 U.S.C.  405(g), 627, and 671(a), arising under the Americans with Disabilities Act pursuant to 42 U.S.C.  12132, and under the Rehabiltation Act pursuant to 29 U.S.C.  794. The Court may issue declaratory relief under 28 U.S.C.  2201 and 2202. Authority to order a reasonable award of attorneys' fees is conferred by 42 U.S.C.  1988. The Court has pendent jurisdiction to issue a writ of mandate or other appropriate relief as to California statuatory violations. STATUATORY SCHEME 7. Under the Act, special needs children who have limited income and resources are eligible to receive SSI payments. These payments may be made to an appointed representative-payee provided that he or she qualifies under federal standards. THE DEPARTMENT proivides an order of preference to be used in selecting a representative-payee which begins with a natural or adoptive parent, regardless of legal custody, as the most desirable appointment. Least desirable, and last on the order of preference, is an authorized social agency or custodial institution. An individual's payments may not be made to a representative-payee who also acts as the beneficiary's creditor, unless that representative-payee can show there is no substantial risk or conflict posed by such appointment and that no one more suitable is available. 42 U.S.C.  405,  1383, and 20 C.F.R.  404.2021, 416.621. 8. Federal law requires that the SSA notify beneficiaries in writing in advance of the first payment of their benefits, as to who the appointed representative-payee is. The then allows the beneficiary to challenge the appointment through the appeal, if he or she so desires. 42 U.S.C.  1383(a) (2) (B) (x), (xi) and 20 CFR  404.2030 (a)(b). 9. The Act mandates that representative-payees use benefits for the immediate and long-term foreseeable care and maintenance of the beneficiary. These maintenance costs include those medical expenses not covered by Medi Cal, academic support such as books or tutors, and extra-curricular activities. SSI benefits not used are to be invested or conserved on the beneficiary's behalf. Conserved funds are to be invested in accordance with rules followed by trustees. Benefits over $150 are to placed in an individual interest-bearing account, which must not exceed $2000 in one month in order to receive the next month's disbursment. THE DEPARTMENT is responsible for establishing a system of accountability through which the representative-payee must report at least once a year with respect to the use of payments received on behalf of a beneficiary. 42 U.S.C.  405 (j)(3)(A), 1383 (a)(2)(c)(i), and 20 C.F.R.  404.2045, 416.645. 10. SSI benefits are protected by 42 U.S.C.  407(a) which provides that "the right of... future payment under this [section] may not be transferable or assignable,... and none of the money paid or payable or rights existing under this [section], shall be subject to execution, levy, attachment, garnishment, or other legal process...." 11. The Americans with Disabilities Act ("ADA") protects individuals with disabilities from exclusion of participation in or denial of the benefits of services, programs, or activities of a public entity. 42 U.S.C.  12132. 12. Similarly, under 504 of the Federal Rehabilitation Act of 1973, no individual with a disability can, by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. 29 U.S.C.  794.  13. Welf. & Inst. ("W & I") Code  361.5 provides a guideline to be followed by counties which outlines the reunification efforts to be made by a county on behalf of a children in county custody and their biological parents. The statute states that a county may facilitate reunification efforts up to a maximum of twelve months. An additional six months may be granted if, and only if, it can be shown that the objectives of the service plan can be achieved within this extension. Reunification services need not be provided where it is shown that the whereabouts of the parent is unknown, where the parent has a documented disability including mental defect or habitual drug and/or alcohol abuse, or where the child has been found to be a victim of sexual or physical abuse by the parent. 14. Under California law, the adoption process begins following the tolling of an eighteen month period for reunification services for the natural family. A court must then grant termination of natural parental rights where the natural parents relinquish rights by consent. Family Code  7660, 7661, and 7662. The court may terminate parental rights without consent where the child has been a dependant of a county for at least one year and one or more of the following is true, (1) and the parent has been convicted of a felony which makes him/her unfit for parenting, (2) the parent has a disability which includes a mental defect or habitual drug and/or alcohol abuse, or (3) the child has been a victim of cruelty or neglect by the parent. Fam. Code  7823, 7824, and 7825. 15. The California Adoption Assistance Program, established pursuant to Welf. & Inst. Code  16115 et. seq., provides inter alia, payments to parents who adopt eligible children with special needs to enable them to meet the needs of their children. The purpose of the Adoption Assistance Program is to provide the stability and security of permanent homes to children through adoption, thereby reducing the need for foster home care. W & I Code 16115. 16. California counties receive federal financial reimbursement for cash adoption assistance benefits paid on behalf of children who qualify for adoption benefits under Title IV-E of the Adoption Assistance and Child Welfare Act, 42 U.S.C.  670, et. seq. In order to receive this federal funding, the counties must administer the Adoption Assistance Program in a manner  consistant with the requirements of Title IV-E and the regulations and policies promulgated by THE DEPARTMENT. 17. Pursuant to federal and state law, the amount of the adoption assistance payment must be determined through negotiation and agreement between the adoptive parents and the county. However, the maximum AAP payment may not exceed the age-related, state-approved foster care rate, including any specialized care increment, for which the child would have been eligible while in foster care. 42 U.S.C.  673 (a) (3); W & I Code  16119, 16121. In California, the state approved foster care rate is set by statute, and the specialized care increment by a county, following guidelines established by statute. W & I Code  11461. 18. When making a determination of actual AAP cash benefits, the county should take into consideration the child's needs and the adopting parents' individual circumstances. According to federal law, reciept of SSI benefits may be taken into consideration in negotiating this benefit, but may not be used to justify an automatic reduction in this payment. ACYF-PA-83-5. State law provides that other resources may also be taken into consideration when negotiating AAP benefits, but no state provision specifically governs the receipt of SSI benefits. 22 C.C.R. 35333 (a). 19. Once an adoption assistance agreement is signed by an adopting parent, he or she must recertify the agreement every two years. At the time of recertification, negotiation for different benefits amount may occur if the child's or adoptive parent's situation has changed. The amount of adoption assistance may also be reajusted periodically as long as a county has the concurrence of the adoptive parent. 42 U.S.C.  673 (a) (3). Counties may not arbitrarily terminate adoption assistance befors the child reaches the age of majority, nor may they impose blanket limitations on the duration of the adoption assistance agreement. ACYF-PIQ-81-02. DEFENDANTS' VIOLATIONS OF THE STATUTORY SCHEME 20. Defendant DONNA SHALALA is the SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ("THE DEPARTMENT").  THE DEPARTMENTis responsible under federal law to administer SSI benefits and programs for eligible individuals. 21. Defendant CONTRA COSTA COUNTY ("THE COUNTY") is responsible for administering and enforcing laws pertaining to public social services, including foster care and adoption assistance for children in its custody. Defendants' pattern and practice of illegal conduct is as follows: 22. When plaintiff children in THE COUNTY are taken into county custody through the foster care system, THE COUNTY routinely applies to SSA for SSI benefits on the children's behalf. At the same time, THE COUNTY applies to the act as a representative-payee for these SSI benefits. In direct violation of federally-mandated preference standards and without further inquiry, THE DEPARTMENT automatically approves appointment of THE COUNTY as representative- payee for the SSI benefits of the children in county custody. Beneficiaries are not notified by THE DEPARTMENT of this appointment or of their right to challenge the appointment through appeal procedures. Plaintiffs are not informed by THE COUNTY or THE DEPARTMENT of their entitlement to SSI benefits. 23. Without statutory or regulatory authority THE COUNTY usurps the SSI benefits belonging to these disabled children to reimburse itself for past and current foster care services provided. THE COUNTY thereby treats Plaintiffs less favorable than non-disabled children who do not receive SSI benefits. THE COUNTY misappropriates and uses the SSI benefits without considering the foreseeable future needs of eligible children and without conserving or investing excess funds into individual interest-bearing accounts. THE COUNTY diverts portions of these monies to county programs unrelated to child welfare. THE DEPARTMENT fails to require the annual accounting from THE COUNTY to document the receipt and use of these SSI benefits. 24. THE COUNTY routinely ignores state-mandated timelines concerning permanency planning for disabled children in foster care, thereby keeping adoptable children in foster care much longer than necessary. THE COUNTY engages in a custom it terms "red dotting" which involves deliberate shelving for indeterminate amounts of time and/or refusal to allow adoption by labeling children with documented medical and/or behavioral disabilities as  "unadoptable". By intentionally delaying the adoption of disabled children in county custody, THE COUNTY is able to remain the representative-payee for the children's SSI benefits and is able to continue its practice of misappropriation and unlawful self-reimbursement. 25. THE COUNTY also fails to provide children in county custody with information concerning eligibility and availability of AAP benefits. THE COUNTY has violated federal regulations by refusing to negotiate with foster care providers to provide eligible Plaintiffs with such benefits when requested to do so and by failing to apply the correct standard in determining the actual cash benefit. THE COUNTY has also intentionally delayed recertification for Plaintiffs' AAP benefits by refusing to communicate with foster care providers and adoptive parents in order to agree on a cash benefit amount. 26. Foster care providers who have actively pursued adoption of these children or accountings and information as to their entitlements have experienced harassment, lack of cooperation and misinformation at all levels of county management. On several occasions THE COUNTY threatened to remove disabled children from their foster homes and place them in institutions if the care providers persisted in their efforts to adopt or to negotiate benefits. 27. Based on past experiences with THE COUNTY Plaintiffs fear reprisal for their involvement in this case as THE COUNTY retains broad discretion in the placement of those children not yet adopted. Putative adoptive parents fear their foster children may be removed at will and be placed in institutions based on their disabilities. Those Plaintiffs who have already completed adoption proceedings continue to negotiate benefits with THE COUNTY and fear that these negotiations will suffer as a result of their involvement herein. CLASS ALLEGATIONS 28. Plaintiffs bring this action on thier own behalf and on behalf of similarly situated individuals pursuant to Federsl Rules Civil Procedure 23(a), (b)(1), and (b)(2). The class representatives are all minor persons who are or have been, pursuant to court order or otherwise, in the custody fo THE COUNTY, and who are entitled to AAP and/or SSI benefits for which THE COUNTY is or has been named representative-payee.  29. The class consists of two sub classes, those children still in foster care and awaiting adoption through THE COUNTY and those children finally adopted after lengthy delays but whose benefits are still misused and/or misappropriated. LAURIE Q., MEGAN W., CHRISTINA T., REBECCA T., JESSE B., and ANGEL L. represent the sub-class of plaintiff children who haave been adopted but who continue to suffer harassment, misappropriation, and denial of their entitlements. CHERIDA J. and KENDRA J. represent the sub-class of plaintiff children who continue to await adoption through THE COUNTY. 30. The exact number of the class fluctuates, but is within defendant's knowledge and will be subject to discovery. The class is so numerous that joinder of its members is impracticable. 31. There are questions of law and fact common to all class members: a. Whether THE COUNTY improperly assigns and usurps benefits belonging to class members without due process of law and in violation of the equal protection guaranties of the state and federal Constitutions. b. Whether THE DEPARTMENT violates its own regulations and applies an improper procedure under the regulations for appointing a representative- payee. c. Whether THE DEPARTMENT violates its own regulations by failing to provide written notice of representative-payee appointments to the class members' foster care providers, thereby denying class members their due process right to challenge the appointment through an appeal. d. Whether THE COUNTY'S taking of benefits belonging to class members is an improper seizure or assignment of benefits under 42 U.S.C.  407. e. Whether class members are required to reimburse THE COUNTY for the cost of their own foster care, and if so, to what extent of their resources. f. Whether THE COUNTY has properly conserved and set aside in a trust fund for future needs the funds to which class members are entitled. g. Whether THE COUNTY has taken any steps to prepare and maintain accountings for the funds received on behalf of minors and THE COUNTY'S disbursements of such funds.  h. Whether THE COUNTY has intentionally delayed adoptions of class members in order to continue the unlawful practices specified above. i. Whether THE DEPARTMENT has condoned and acquiesced in these illegal practices by failing to require accountings of class members' benefits or has otherwise failed to enforce federal legal requirements. j. whether THE COUNTY contravenes law and regulations in detemining and allocating AAP benefits. 32. The claims of the named plaintiffs as representative parties are typical of the claims of class members. Thus Plaintiff class representatives will fairly and adequately protect the interests of the class. 33. The prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members, therby establishing incompatible standards of conduct for the parties opposing the class. 34. The defendants have acted and refused to act on grounds generally applicable to the class, thereby making injuctive and declaratory relief appropriate with respect to the class as a whole. 35. A class action is the superior method for adjudicating these claims because: a. The class representatives and the class members will be better able to obtain legal redress if the action is maintained as a class action. b. Class members are too poor to initiate individual suits. c. Individual damages are so small that individual actions or other individual remedies are impracticable. d. The burdens imposed on the judicial system by multiple actions would outweigh any burdens imposed on the system by a class action. e. Public interest would be served by obtaining definintive answers to questions posed by this action. f. There are no difficulties in class management in this action since the members of the class are ascertainable, and hence, there should be no problem in providing them with notice of this action. g. Plaintiffs are not aware of any pending litigation in California on behalf of the class as defined above relating to his matter.  INDIVIDUAL FACTUAL ALLEGATIONS LAURIE Q. 36. Laurie Q. was born 7/6/87. At birth Laurie tested positive for cocaine and there is evidence that she was sexually molested as a child. LAURIE has since been diagnosed with Attention Deficit Hyperactive Disorder ("ADHD"), a disability which impairs LAURIE'S ability to concentrate in school and requires that she receive specialized education. 37. On 5/27/88 LAURIE was taken into legal custody and made a dependent of THE COUNTY based on neglect by her biological parents. LAURIE was place into the foster care home of PB. After one year together, PB expressed a desire to adopt LAURIE. THE COUNTY denied PB's request and instead entered a recommendation of long-term foster care for LAURIE, deeming her "unadoptable". For the next seven years PB fought THE COUNTY to allow the termination of LAURIE'S biological parents' parental rights in an effort to remove all barriers to her adoption. 38. As LAURIE'S care provider, PB received only the basic rate AFDC- Foster Care payment plus a Difficulltyof Care ("DOC") supplement. LAURIE was not informed by THE COUNTY that she was eligible to receive SSI benefits based on her special needs or that THE COUNTY applied for and began receiving SSI benefits on her behalf in 2/93. Approximately two years later THE COUNTY informed PB that LAURIE'S SSI benefits had been canceled due to THE COUNTY'S mismanagement of her funds and PB learned for the first time that LAURIE was an SSI recipient. PB requested that THE COUNTY pass LAURIE's benefits along and THE COUNTY refused for several months. 39. LAURIE has not received retroactive payments for the twenty two months THE COUNTY had received full SSI benefits on her behalf and failed to pass those funds along. THE COUNTY also received two lump sum disbursements from SSA on behalf of LAURIE totaling $12,000, both of which were immediately used by THE COUNTY to reimburse itself for prior services provided to LAURIE. 40. On 4/20/95, the parental rights of LAURIE'S biological parents were finally terminated, seven years after LAURIE entered PB's home. LAURIE'S adoption was not completed by THE COUNTY until 2/14/96.  41. THE COUNTY did not inform PB of her right to negotiate AAP benefits on LAURIE'S behalf and has subsequently denied all of PB's requests to do so to date. ANGEL L. 42. ANGEL L. was born 9/8/85. At birth ANGEL tested positive for drugs and as an infant she was physically abused by her biological parents. ANGEL is developmentally delayed and as a result requires specialized education and therapy. 43. In 11/85 ANGEL was taken into custody by THE COUNTY and placed in the foster home of ML. During her tenure as ANGEL'S care provider, ML received only the basic rate AFDC-Foster care payment per month. ML was never informed of the availability of SSI benefits for ANGEL and to date has never received such benefits. 44. In 1988 ML began to actively pursue adoption with the support of ANGEL'S biological parents, who wished to have ML adopt their child. THE COUNTY refused these requests and instead continued to work towards reunification, despite the fact that the mandated timeline for reunification efforts has already been tolled. THE COUNTY refused to terminate ANGEL'S biological parental rights until 1993, at which time ML immediately filed for adoption. ANGEL'S adoption was not finalized until 4/94. ANGEL remained in foster care for a total of nine years. 45. THE COUNTY failed to inform ANGEL of her entitlement to AAP benefits upon adoption and subsequently refused to negotiate with ML for a cash benefit amount to cover ANGEL'S special needs. Instead THE COUNTY unilaterally informed ML of the benefit amount she would receive and refused to negotiate an amount based on ANGEL'S special needs and ML'S individual situation. Upon recertification for ANGEL'S AAP benefits this year, THE COUNTY again refused to negotiate a cash benefit amount despite the fact that ML presented documentation of ANGEL'S increased needs.  CHRISTINE T. AND REBECCA T. 46. CHRISTINE T. was born 5/8/86. REBECCA T. was born 4/8/85. At birth, both CHRISTINE and REBECCA tested positive for drugs and alcohol. As children, CHRISTINE and REBECCA experienced severe trauma as a result of sexual molestation. Both girls are eligible to receive SSI benefits based on their qualification as special needs children. 47. In 1/89, CHRISTINE and REBECCA were made dependents of THE COUNTY and placed into the foster care home of ST. ST received monthly basic rate AFDC- Foster Care payments and a minimal DOC allowance for CHRISTINE and REBECCA'S care. ST was never informed by THE COUNTY of CHRISTINE and REBECCA'S eligibility to receive SSI benefits. At no time did ST ever recieve SSI benefits from THE COUNTY on behalf of either child. 48. On 11/1/91 the parental rights of CHRISTINE and REBECCA'S biological parents were terminated, removing all barriers to adoption. Final adoption did not take place until 4/6/94. CHRISTINE and REBECCA were in legal custody of THE COUNTY for five and a half years. 49. Following the final adoption, ST learned that CHRISTINE was an SSI recipient. To date, ST has been unable to ascertain whether or not REBECCA received SSI benefits through THE COUNTY while in custody. 50. At this same time, all efforts to negotiate AAP benefits by ST on behalf of CHRISTINE and REBECCA were denied by THE COUNTY. Instead, THE COUNTY informed ST if she did not accept its unilaterally determined cash benefit amount, THE COUNTY would take both CHRISTINE and REBECCA from her home and place them in an institution. ST agreed to the pre-determined AAP benefits which amounted to half of what they were eligible for. 51. ST is presently aware of four different Social Security numbers assigned to CHRISTINE by THE COUNTY. Neither of the numbers on the girls' Medi-Cal cards matches their Social Security numbers, as they should. JESSE B. 52. JESSE B. was born 9/10/91. At birth JESSE was diagnosed with Fetal Alcohol Syndrome, a condition which causes JESSE to be extremely hyperactive. JESSE requires constant attention and specialized education. Based on his special needs, JESSE is eligible to receive SSI benefits.  53. In 4/92 JESSE entered the foster home of RR. Shortly thereafter, JESSE'S biological mother expressed her desire to relinquish parental rights and have RR adopt her son as she felt unable to care for him herself. THE COUNTY denied this request. A few months later, when RR again expressed her desire to adopt JESSE, THE COUNTY refused her request assertedly on the basis of her status as a single parent. For the next three years RR fought THE COUNTY to terminate JESSE'S biological parents' parental rights. On several occasions THE COUNTY threatened to remove JESSE from RR's home if she persisted in her desire to adopt. THE COUNTY did not finalize JESSE'S adoption until 4/95. 54. Throughout her tenure as a foster parent, RR made several inquiries to THE COUNTY about the availability of benefits, including SSI, to cover expenses incurred by JESSE'S special needs. THE COUNTY repeatedly responded there were no such funds available for JESSE and that it was not their policy to provide such benefits. RR received only monthly basic rate AFCD-Foster care payments, despite documentation of expenses she uncurred due to JESSE'S large medical bills. 55. following adoption, RR met with THE COUNTY to negotiate an AAP agreement on JESSE'S behalf. At this meeting, RR again inquired about JESSE'S SSI benefits and it became evident that THE COUNTY had been receiving benefits on JESSE'S behalf during that time period and to date RR has received only part of these funds. 56. When negotiation for JESSE'S AAP benefits finally began, THE COUNTY refused to adhere to regulated standards in determining the amount and instead arbitrarily calculated a benefit it felt appropriate. RR refused to accept several offers and repeatedly reminded county officials of her right to receive an AAP cash benefit in the amount up to the rate JESSE would be eligible for under foster care. THE COUNTY requested that RR sign two AAP contracts which incorrectly stated the amount and duration of JESSE'S benefits. RR refused to sign anything until she was provided with a contract that correctly stated the amount and duration of JESSE'S AAP benefits.  57. All of RR's requests to THE COUNTY to view JESSE'S financial files have been denied. MEGAN W. 58. MEGAN W. was born 10/9/88. At birth MEGAN tested positive for cocaine and within one month's time was ordered a dependent of THE COUNTY. MEGAN was placed into the foster care homeof TW, a relative of MEGAN'S biological mother. 59. As MEGAN'S foster care provider, TW received monthly basic rate AFCD- Foster Care payments. TW was not informed of the availability of SSI benefits to help alleviate costs incurred by MEGAN'S special needs and has never received SSI benefits on behalf of MEGAN. Based on MEGAN'S special needs and disability, TW believes THE COUNTY received SSI benefits on MEGAN'S behalf and failed to pass these benefits along. 60. In 1989, TW expresses her desire to adopt MEGAN. At this time, MEGAN'S biological parents also expressed a desire to relinquish parental rights based on their inability to care for MEGAN properly. THE COUNTY refused to act expeditiously and parental rights were not terminated until 1991. 61. Following this, THE COUNTY refused to provide TW with application papers necessary to begin the adoption process and delayed conducting TW's home study, a necessary part of the adoption process. Due to THE COUNTY'S lack of cooperation, TW was unable to file an adoption petition until 5/92. In 7/92 TW began to write letters to local and state politicians, informing them of the barriers she was facing in her attempts to adopt. On 8/13/92, as a result of direct intervention by Governor Wilson, MEGAN'S adoption was finalized by THE COUNTY. MEGAN was kept as a dependent of THE COUNTY for a total of four years. 62. THE COUNTY failed to inform TW of her right to negotiate AAP benefits on behalf of MEGAN and subsequently refused to do so, instead unilaterally determining a cash benefit amount. THE COUNTY also failed to inform TW of the requirement to recertify AAP benefits every two years and in 1/94 MEGAN'S AAP contract came to an end. To date this recertification issue has not been resolved by THE COUNTY and therefore MEGAN is not receiving AAP benefits to which she is entitled to.  CHERIDA J. 63. CHERIDA J. was born 11/1/84. At birth CHERIDA was diagnosed with Joubert's Syndrome, a massive congenital brain anomaly, and cortical blindness. CHERIDA is totally dependent on her care provider for all aspects of her daily care as she is incontinent and confined to a wheelchair in which she is restrained.. 64. In 1985, CHERIDA was taken into legal custody as a dependent of THE COUNTY and placed in the foster care home of ML. While in ML's care, CHERIDA received monthly basic rate AFCD-Foster Care payments. 65. In 1989, ML asked THE COUNTY if CHERIDA was eligible for SSI benefits as she had heard other care providers speaking about such benefits. THE COUNTY never answered her inquiries. In 1993 ML received a letter from THE COUNTY stating that SSI benefits had been approved for CHERIDA. When ML called THE COUNTY to inquire as to what this meant she was informed by THE COUNTY that CHERIDA would not receive any SSI funds as it "all goes into a pot". At this time ML informed THE COUNTY that CHERIDA was in dire need of a new wheelchair. THE COUNTY offered no financial assistance. To date CHERIDA has not received any SSI benefits from THE COUNTY. 66. ML has inquired several times as to what resources would be available to her if she were to adopt CHERIDA. THE COUNTY has consistently responded that CHERIDA is "unadoptable", and has provided no information on benefits available to help ML neet the cost of CHERIDA'S special needs. 67. For the past ten years CHERIDA has been kept in long term foster care with no efforts on the part of THE COUNTY to change her status. ML is unaware as to whether or not the biological parents' parental rights have been terminated. CHERIDA has had no contact with either of them since she was one year old. CHERIDA has now been a foster child for a total of eleven years. 68. ML is fearful that THE COUNTY will take retaliatory measures against CHERIDA by removing her from ML's home due to her involvement in this case. KENDRA J.  69. KENDRA J. was born 2/9/88. At birth KENDRA tested positive for cocaine, syphilis, and gonorrhea. As a result KENDRA is physically developmentally delayed and requires speech therapy and specialized education. That same month KENDRA was taken into legal custody by THE COUNTY and placed in the foster care home of JG. At that time THE COUNTY informed JG that KENDRA was "not a viable adoptable child". 70. In 1989, JG began to actively pursue adoption on behalf of KENDRA. THE COUNTY refused and threatened to remove KENDRA if JG persisted. In 1993 JG attended a court hearing during which KENDRA'S biological mother expressed her desire to relinquish parental rights and have JG adopt KENDRA. Again THE COUNTY refused to begin adoption proceedings. On 8/8/93, KENDRA'S biological mother died and KENDRA became a legal orphan. For the next two years JG continued her attempts to adopt KENDRA and was consistently denied by THE COUNTY. On 3/31/95, JG agreed to accept legal guardianship of KENDRA as a substitute for formal adoption when THE COUNTY informed her it would not change its "unadoptable" recommendation. Legal guardianship, as opposed to adoption, enables THE COUNTY to retain legal custody over KENDRA and therefore remain her representative payee in the event that she receive SSI benefits. 71. As KENDRA'S foster care provider, JG received monthly basic rate AFDC-Foster care payments. THE COUNTY did not inform JG of the availability of SSI benefits for KENDRA and refused to provide JG with appropriate DOC payments to help defray expenses incurred by KENDRA'S special needs. Based onKENDRA'S special needs and her physical disability, JG believes that THE COUNTY received and continues to receive SSI benefits on her behalf. THE COUNTY is now retroactively charging JG for services provided to KENDRA in years past without any justification. DECLARATORY RELIEF 72. An actual controversy has arisen and now exists between Plaintiffs and THE DEPARTMENT concerning their rights and duties under 42 U.S.C.  405 and 20 C.F.R. 404.2021 which governs selection of representative-payees for SSI benefits for special needs children. Plaintiffs contend THE DEPARTMENT violates federal regulations and Plaintiffs' constitutional rights by disregarding mandated federal preferences and automatically appointing THE COUNTY representative-payee without inquiry into preferred alternatives.  73. An acutal controversy has arisen and now exists between Plaintiffs and THE DEPARTMENT concerning their rights and duties under 42  1383 and 20 C.F.R. 2030. Plaintiffs contend that THE DEPARTMENT must provide beneficiaries with timely written notice of representative-payee appointments and their subsequent right to appeal such appointment. THE DEPARTMENT only sends notice to THE COUNTY thereby depriving Plaintiffs of important information concerning their benefits. THE DEPARTMENT is thereby violating federal regulations and Plaintiffs' constitutional rights to due process. 74. An actual controversy has arisen and now exists between Plaintiffs and THE COUNTY concerning the fiduciary duty of the representative-payee to the beneficiary which includes conservation, investment, and proper use of the SSI benefits pursuant to 20 C.F.R.  404.2035 and 404.2040. Plaintiffs contend THE COUNTY'S custom of misappropriating federal funds belonging to Plaintiffs, its failure to conserve or invest these benefits on Plaintiffs' behalf, and its failure to follow proper accounting procedures are violations of its fiduciary duty, of federal statutes including 42 U.S.C.  122132 (the ADA) and 29 U.S.C.  794 (The Rehabilitation Act) and of Plaintiffs' constitutional rights to due process and equal protection. 75. An actual controversy has arisen and now exists between Plaintiffs and THE COUNTY concerning their respective rights and duties under the state law which govern the adoption process. Plaintiffs contend THE COUNTY fails to adhere to mandated timelines for adoptions in order that THE COUNTY might remain the representative-payee for the children and therefore continue its unlawful practices. THE COUNTY thereby violated state and federal statutes and Plaintiffs' rights to due process and equal protection under the Constitution. 76. Under the ADA 42 U.S.C.  12132, and the Rehaabilitation Act, 29 U.S.C.  794, and the equal protection clause of the Constitution, individuals with disabilities are protected from discrimination. Plaintiffs contend they receive differential treatment from THE COUNTY based on their disabilities in that they are singled out for delayed adoption, for reimbursement to THE COUNTY for its services, and are harassed with threats of removal from their homes and/or placement in an institution. As a result, THE COUNTY is violating these federal statutes prohibiting discrimination based on disaability and Plaintiffs' right to equal protection under the Constitution.  77. Under 42 U.S.C.  670 and Cal W & I Code  16119 and 161221, special needs children in the adoption process are eligible for AAP benefits. Plaintiffs contend THE COUNTY fails to provide eligible children with written notice that such benefits exist and refuses to negotiate benefits up to the statutory amount for which Plaintiffs would haave been eligible while in foster care. 78. Because defendants dispute the above contentions, Plaintiffs desire a judicial determination and declaration of Plaintiffs' and Defendants' respective rights and duties under the foregoing laws. 79. These declarations are necessary and appropriate at this time so Plaintiffs may receive and use the federal benefits thay are entitled to as special needs children. INJUNCTIVE RELIEF 80. THE DEPARTMENT'S automatic appointment of THE COUNTY as representative-payee and subsequent failure to provide reuqired notice of appeal rights causes Plaintiffs to suffer irreparable harm as specified in paragraphs 7 through 22. Plaintiffs have no plain, adequate or complete remedy at law to redress these wrongs as there is no compensation for their loss of opportunity to receive timely written notice and to object to the representative-payee appointed on their behalf. Thus, Plaintiffs' only adequate remedy is an injunction requiring THE DEPARTMENT to comply with federal law when appointing a representative-payee for childrens' SSI benefits, to provide timely written notice of such appointment and of the beneficiary's right to appeal. 81. THE COUNTY violates ifs fiduciary duty under the Act by misappropriating funds, by failing to pass benefits along to Plaintiffs, and by failing to maintain the required accountings as specified in paragraphs 8 through 23. Plaintiffs suffer irreparable harm and have no plain, adequate or complete remedy at law to redress these wrongs as there is no compensation for the emotional distress, mental anguish, and financial strain endured by Plaintiffs as a result of the ongoing denial of SSI benefits designed to alleviate their special needs. Thus Plaintiffs' only adequate remedy is injunctive relief requiring THE COUNTY to utilize benefits for the current care  and maintenance of the beneficiary, otherwise to conserve and invest such funds and to provide Plaintiffs with an appropriate and full accounting, for the receipt and use of benefits in accordance with federal statutes. 82. In an effort to remain the appointed representative-payee and to continue misappropriating Plaintiffs' federal benefits, THE COUNTY continues to intentionally delay or impede permanent and stable family placements for special needs children through adoption, as specified in paragraphs 13 through 26. Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs as they incur irreparable harm as a result of the anguish and fear they have and continue to suffer by not knowing whether or not they will suffer reprisal by THE COUNTY for their involvement in this case. Thus, the Court should enjoin THE COUNTY from continuing to delay or impede adoption proceedings and from taking any retaliatory measures against Plaintiffs from their involvement herein. 83. Federal and state regulations exist to govern the administration of AAP benefits for putative adoptative, as specified in paragraphs 15 through 25. THE COUNTY violates these provisions by failing to provide information of AAP benefits to eligible children and failing to negotiate a cash benefit amount in accordance with the correct standard. As a result, Plaintiffs suffer irreparable harm and have no plain, adequate or complete remedy at law to redress the wrongs alleged as there is no compensation for the mental anguish and financial strain Plaintiffs endure as a result of THE COUNTY'S illegal acts. The Court should issue an injunction requiring THE COUNTY to comply with state and federal law by providing eligible putative adoptive children wtih timely written notice of the availability of AAP benefits and to negotiate these benefits up to the statutory amount for which the child would be eligible while in foster care. WRIT OF MANDATE (Cal. Code Civ. Proc.  1085) 84. THE COUNTY has a legal duty to comply with constitutional requirements and Cal. Welfare and Institutions Codes  16121 and 16119 which outline the procedural requirements in administering the Adoption Assistance Program ("AAP").  85. THE COUNTY is obligated to follow such legal constitutional requirements and to refrain from obstructing Plaintiffs' right to receive timely written notification of the availability of AAP benefits. THE COUNTY also has a legal duty to negotiate with putative adoptive parents a cash benefit amount up to the statutory amount Plaintiff would have been eligible for while in foster care, based on individual special needs and the circumstances of the adopting foster parents. 86. Plaintiffs are beneficially interested in the enforcement of their legal and constitutional rights to receive information concerning available benefits and to obtain a cash benefit amount according to appropriate standards. 87. The only effective relief for THE COUNTY'S breach of legal duty and violation of Plaintiffs' constitutional rights is to order THE COUNTY to supply the necessary information concerning the availability of AAP benefits to putative adoptive children and to negotiate a cash benefit amount based on the correct standard. 88. Plaintiffs have no plain, adequate, or speedy remedy in the ordinary course of law other than the relief sought by this complaint. REQUEST FOR RELIEF WHEREFORE, Plaintiffs request the Court: 1. To certify this case as a class action. 2. For appropriate declaratory relief as set forth above in paragraphs 72 through 79. 3. For appropriate injunctive relief as set forth in paragraphs 80 through 83. 4. For a writ of mandate ordering such relief as set forth in paragraphs 84 through 88. 5. For damages in an amount equal to an accounting of all benefits not received by Plaintiffs. 6, For compensatory damages, including the costs of individual and family therapy and emotional distress, in an amount according to proof. 7. For attorney fees and costs.  8. For prejudgement interest all amounts claimed. 9. For such other and further relief as the court considers proper. DATED: September 23, 1996 Respectfully submitted, LAW OFFICES OF MICHAEL SORGEN By:___________________________ Michael S. Sorgen Attorneys for Plaintiffs