FJLE.O
...u~ DISTRICT COURT
MAY 1 02000

IN THE UNITED STATES DISTRICT COURT FOR THE IVIIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

:~.. f
OEPUTY CLERK

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BRIAN A., by·his·ne~~friend, Bobbi Jean "Brooks; )

TRACY B., by her neXt friend, Pamela Pallas; )

JACK and CHARLES~., by their.nelct friend, . )

Linda Lloyd;

_

)

AMY D., by herne)Ct (riynd, Frank Koon;

)

DENISE E., by her ne)Ctfriend, Linda Llpyq;-

)

CHARLETTE F., by her nelct friend,

)

Juanita Veasy; and

)

TERRY G., by her ne)Ct friend, Carol Oldham, )

on.·their own behalf and on behalf of all others )

similarly situated,

)

Plaintiffs, )

)

--against--

)

)

DONALD SUNDQUIST, Governor of the State )

ofTennessee; and

)

GEORGE HATTAWAY, Commissioner of the )

Tennessee Department of Children's Services

)

COlvlPLAINT - CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF
3 ,·00
Civil Action No. _ __
JUDGE CAfulPBELL !

Defendants. )
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. -'.

,.,.

0'

.. ".::

Table of Contents
INTRODUCTION ...................................................... " -1-
JURISDICTION AND VENUE .............................................. -7-
CLASS ACTION ALLEGATIONS ........................................... -7-
PARTIES ............................................... '............... -11Named Plaintiffs ................................................... -11Defendants ....................................................... , -12-
STRUCTURE OF THE TENNESSEE CHILD WELFARE SYSTEM ............... , -13Entering DCS Foster Care ............................................ -14Types of Placements for Children in DCS Custody ......................... -15Delivery of Services to Children in DCS Custody ......................... , -17-
LEGAL FRAMEWORK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -20The United States Constitution ........................................ -20The Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 ........................... -24The Americans with Disabilities Act and The Rehabilitation Act of 1973 ........ -27Title VI of the Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -27-
FACTUAL ALLEGATIONS REGARDING NAJv'lED PLAINTIFFS ................. -28BRlAN A. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -28TRACYB........................................................ -31JACK AND CHARLES C. ........................................... -35AMY D.......................................................... -40DENISE E. ....................................................... -44CHARLETTE F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -46TERRY G......................................................... -49-
FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES ......... , .. -52A. Assessments and Case Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .. -55B. Permanency Planning for Children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -57C. Out-of-Home Placements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -58D. Services to Children in Foster Care .................................. -62Educational services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -62Reunification, visitation and family support services .................. -63Adoption and other permanent placement services . . . . . . . . . . . . . . . . . . .. -65Independent Living services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -68E. Administrative and Judicial Reviews ................................. -69-

F. Case Manager Case Loads, Turnover, Training and Supervision ............ -70G. Management Information System ................................... -73H. Financial Management ............................................ -74I. Discriminatory Effect in the Administration of Child Welfare Services on
African-American Foster Children in DCS Custody ................... -75. CAUSES OF ACTION .................................................... -77-
PRAYER FOR RELIEF ................................................... -83-
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INTRODUCTION 1. This is a civil rights action against Donald Sundquist, as Governor of the State of Tennessee, and George Hattaway, as Commissioner of the Tennessee Department of Children's Services ("DCS") (collectively referred to as "Defendants"), on behalf of a class (the "Class") consisting of all foster children who are or will be in the custody of DCS. This action is also brought on behalf of a subclass of children in the Class who are African-American (the "AfricanAmerican Subclass"). 2. Defendants' systemic failure to fulfill their legal obligations to protect Tennessee's most vulnerable children and provide them and their families with legaIly required services has subjected the Plaintiff children to significant harm and threatened their safety and weIl-being, in violation of their rights under the United States Constitution, federal statutes, and federal common law. This action seeks declaratory and injunctive relief against Defendants to stop these continued violations and to ensure that Defendants adequately care for and protect children in state custody as required by law. 3. DCS is removing children from their homes and placing them into a grossly mismanaged and overburdened child welfare system. Defendants routinely take children into DCS custody, only to later discharge them from DCS custody and into circumstances which Defendants know, or should know, render the children vulnerable to danger and place them at risk of harm. While in foster care, children routinely spend years, and often lose much of their childhoods and suffer additional deprivations, as they are moved from one inadequate placement to another without appropriate services, languishing in state custody. Routinely, children are discharged from state custody at the age of 18 without ever receiving any meaningful opportunity for a stable, caring home
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or the legally required services that provide the life skills necessary for them to live independently.

4. The DCS foster care system is marked by the following grim facts, among others:

•

Children are routinely placed in emergency shelters and other temporary holding

facilities for upwards of six months at a time because the state has nowhere else to

place them. As of April of 1999, almost 400 children were on waiting lists for

needed services and placements.

.

•

The average number of placements for foster children is 3.4, and 23 % - over

2,000 children based on the statewide foster care population - have experienced 10

or more foster care placements.

•

The state estimates that 36% of children in DCS custody have been in custody for

over two years. Over 17 % have been in custody for over four years. The actual

percentage of foster children in DCS custody for over two and four years is

significantly higher, because the state's estimate includes delinquent children who,

as found by the state, spend less time in custody.

•

Children 13 years and older - approximately 45 % of all foster children or over

4,000 children - comprise the biggest segment of the DCS foster care popUlation.

These children experience the greatest number of placements, often suffer additional

abuse while in foster care and face the poorest prospects for adoption or other

permanent home.

According to a state report issued in August of 1999, approximately 800 foster children, for whom parental rights have been terminated, were awaiting adoption. The state has estimated that federal law requires termination of parental rights ("TPR") and efforts toward adoption for at least 1,100 additional children, but these steps have not been taken. These children are only part of what could exceed 6,000 children who were in foster care for 15 of the last 22 months, as of September, 1998, requiring DCS under federal law to return these children home, or initiate TPR and proceed to adoption.

•

Defendants make even less effort to secure appropriate placements and services, and

to make reasonable efforts to secure a permanent home for African-American

children in state custody, than they do for Caucasian children.

All of the above facts are based on data collection and evaluations performed or commissioned by

the Defendants.

5. Foster children in DCS custody include dependent and neglected children, "unruly" status

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offenders who have been accused of or have committed specific offenses that are only unlawful for minors (e.g., truancy, drinking alcohol, running away), and children placed into custody voluntarily by their parent(s) or guardian(s). The state reports that there are currently approximately 9,000 children in DeS custody who are dependent and neglected, "unruly," or whose parent(s) or guardian(s) voluntarily placed them in custody.
6. The state receives more than 30,000 allegations that children have been abused or neglected each year. Mter investigation, approximately one third of these allegations are "indicated" or found likely to be true, resulting in thousands of children being removed from their homes and taken into state custody each year. Once they enter DeS custody, these children are frequently moved within and among foster care and other placements, based only on the availability of beds or "slots," without adequate monitoring of their needs and development.
7. Defendants' failure to protect foster children in DeS custody and provide them and their families with appropriate, legally required services has harmed these children and endangered their safety, sense of stability and developmental Vv·elI-being. As a result of DeS's egregious lack of appropriate foster care placements, Des often places children in overcrowded, emergency shelters and other emergency temporary placements without needed services or treatment and against their best interest for many months at a time. DeS routinely fails to provide adequate investigation and services to ensure the safety of children who are returned to their parents or placed with relatives, which too often results in further harm or abuse. DeS routinely fails to provide appropriate assessments of children when they enter state custody, and fails to provide appropriate caseworker monitoring and supervision. As a result, children often face abuse and neglect while in foster care, do not receive necessary services and treatment, and frequently spend many years moving from one
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inappropriate foster placement to another. 8. Defendants also routinely fail to create and implement appropriate plans and do not take
reasonable steps either to reunify children safely with their families or find them an adoptive or other permanent home. As a result, for too many children in DCS custody, a safe return to their family, adoption or other permanent placement in a safe, caring and stable home will never happen. For the thousands of teenagers in DCS custody, meaningful services to enable them to live on their own as adults when they are discharged from state custody at age 18 are virtually non-existent.
9. Defendants have failed to provide the leadership, support, and resources necessary to adequately protect and care for the Plaintiff children as required by law. There has been extraordinary turnover of DeS case managers, who are responsible for monitoring the needs of children in state custody, and for coordinating the delivery of services to these children. Dangerously high case loads make it virtually impossible to adequately monitor children's needs and to ensure that they receive necessary services. Inadequate hiring criteria and grossly inadequate training exacerbate the problem. DeS administrators, supervisors and case managers often lack even the most basic knowledge of child welfare issues, or supervisory skills. An atmosphere of intimidation exists both within DeS and among those involved in the child welfare system, which deters advocacy for children in custody by case managers, foster parents, pre-adoptive parents and others who question the current policies and practices of the Defendants.
10. For many years, the problems suffered by foster children and the many failings of DCS and its predecessor agencies have been repeatedly documented in reports by the Tennessee Commission on Children and Youth, by the Tennessee Comptroller of the Treasury, by advocacy organizations across the state, by the General Assembly which has created special committees to
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address the crisis in foster care, by court-approved consultants, and by numerous investigative reports in local newspapers.
11. The state's own financial audits show that gross and repeated financial mismanagement in its child welfare administration have occurred at the same time that the amount of funding for children's services has declined. Millions of dollars already designated and funds otherwise available for child welfare services each year are either unaccounted-for, unused, or wasted due to gross mismanagement and a lack of adequate accounting controls and procedures. The most recent financial audit released in June of 1999 unequivocally found that "[t]he Department of Children's Services' management has been ineffective and has failed to correct the many serious problems noted in prior audits."
12. In August of 1999, the Office of Research of the Tennessee Comptroller of the Treasury issued a report (the "Comptroller's Report") detailing numerous systemic problems resulting from Defendants' mismanagement of the child welfare system, and found, among many other problems, that "Tennessee lacks sufficient placements to meet the needs of children in state custody"; "DCS lacks an adequate management information system to provide accurate data on children in state custody"; "high turnover and caseloads, inadequately trained staff, and under-staffing continue to impede DCS's progress"; and that "it is unlikely that [statistically significant] differences between minority and Caucasiari children are based on chance and that race is a factor in whether or not children receive adequate services." These fundamental problems have directly contributed to Defendants' failure to protect and care for the Plaintiff children, and their violations of Plaintiffs' rights.
13. Defendants have been well aware, for at least ten years, of their pervasive and long-5-

standing failure to adequately serve the children who entirely depend on DCS for their basic safety and their most fundamental needs. Defendants' attempt at reform in creating DCS in 1996, in essentially combining under one agency the juvenile corrections responsibilities and services of the state's Department of Youth Development (DYD) and the child welfare responsibilities and services of the Department of Human Services (DHS), has failed to improve children's lives or improve the efficiency of the system. Rather, as found in the Comptroller's Report, "conflict in organizational culture" - which is dominated by formerly DYD managers and staff- "has ... contributed to . . . staff turnover, ... dependent and neglected children treated as delinquents, and ... role confusion of case managers." Further reform efforts since the creation of DCS to patch fundamental problems have similarly failed.
14. Defendants' pattern of actions and inactions has created a child welfare system infected with widespread systemic deficiencies that prevent Defendants from meeting constitutional and statutory obligations to the Plaintiff children, and violate Defendants' obligations to these children under Tennessee's "State Plan" contract with the federal government. The deprivations experienced by the Plaintiff children have only worsened over time, resulting in the dangerous and unla"wful conditions that exist today.
15. Defendants' failure to fulfill their obligations to meet certain physical and mental health needs of children in DCS custody is already the subject of a Consent Decree for Medicaid-Based Early and Periodic Screening, Diagnosis and Treatment Services (the "EPSDT Consent Decree"), filed February 25, 1998, in the action entitled John B., et aI. v. Menke. et aI., Civil Action No. 3-980168 (M.D.Tenn). Plaintiffs in this action do not assert any claims concerning specific physical and mental health care services which are the subject of the EPSDT Consent Decree. However,
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Plaintiffs reserve the right to bring such claims in this action as a result of any modifications or such other developments that result in a change in the obligations under and/or the scope of the EPSDT Consent Decree.
JURISDICTION AND VENUE 16. This is an action pursuant to 42 U.S.C. § 1983, alleging violations of the United States Constitution and federal statutes. This court has jurisdiction over the federal claims pursuant to 28 V.S.c. §§ 1331 and 1343(a)(3). 17. Venue in this district is proper pursuant to 28 U. S. C. § 13 91 (b) because the claims arise in the district.
CLASS ACTION ALLEGATIONS 18. This action is properly maintained as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 19. The Class consists of all foster children who are or \vill be in the custody of DCS. The African-American Subclass consists of all children in the Class who are African-American. Foster children in DCS custody include dependent and neglected children, "unruly" status offenders who have been accused of or have committed specific offenses that are only unlawful for minors (e.g., truancy, drinking alcohol, running away), and children who were voluntarily placed into custody by their parent(s) or guardian(s). 20. The Plaintiff Class and the African-American Subclass are sufficiently numerous. The Class includes approximately 9,000 children reported by the state to be in DCS custody who are dependent and neglected, "unruly" or were placed into custody voluntarily by their parent(s) or guardian(s). There are approximately 4,400 African-American children in DCS custody. Joinder
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of all members of the Class and the African-American Subclass is thus impracticable. 21. The questions of law and fact raised by the claims of the named Plaintiffs are common
to and typical of those raised by the claims of the putative Class members. Each named Plaintiff and each putative Class and Subclass member is in need of child welfare services, must rely on Defendants for those services, and is harmed by DCS's systemic deficiencies.
22. Common questions of fact include: a. whether Defendants fail to provide children in their custody with safe,
secure and appropriate foster care placements, as required by law and reasonable professional standards;
b. whether Defendants remove children from their homes and have them committed to their custody, and subsequently place them out of their custody and into circumstances which Defendants know, or should know, render the children vulnerable to danger and place them at risk of harm;
c. whether Defendants fail to provide children in state custody with legally required services, consistent with reasonable professional standards, necessary to prevent them from deteriorating physically, psychologically, emotionally, educationally, or in any other manner while in state custody;
d. whether Defendants fail to create and implement appropriate, legally mandated permanency plans for children in foster care to assure they are properly cared for and either safely reunited with their families or promptly placed in permanent homes, consistent with applicable law and reasonable professional standards;
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e. whether Defendants place children in emergency shelters or other emergency, temporary settings for more than thirty days and without appropriate treatment or services and contrary to their individual needs and best interests, in violation of applicable law and reasonable professional standards;
f. whether Defendants fail to provide children in state custody who have
disabilities with services appropriate to their needs and the least restrictive placement, as required by law and reasonable professional standards; and
g. whether Defendants' criteria or methods of administering child welfare services have a discriminatory effect on children in the African-American Subclass on the basis of their race, color or national origin. 23. Common questions of law include:
a. whether Defendants' actions and inactions violate Class Plaintiffs' rights, under the First, Ninth and Fourteenth Amendments of the United States Constitution;
b. whether Defendants' actions and inactions violate Class Plaintiffs' rights under the Adoption Assistance and Child 'Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 US.c. §§ 620-628, 670-679a (collectively the "Adoption Assistance Act") and regulations promulgated thereunder; the Americans with Disabilities Act, 42 U.S.c. §§ 12101 et~; the Rehabilitation Act of 1973, 29 US.c. §§ 794, 794a; and, regarding the AfricanAmerican Subclass only, Title VI of the Civil Rights Act of 1964,42 US.c. § 2000d et ~ and regulations promulgated thereunder, 42 C.F.R. § 80.3 et~.
c. whether Defendants' actions and inactions violate Class Plaintiffs' rights -9-

as third party beneficiaries to the "State Plan" contract between Tennessee and the federal government pursuant to the Adoption Assistance Act, under federal common law. 24. The legal claims alleged by the named Plaintiffs are typical of those raised by the claims of each and every member of the putative Class. The legal claims alleged by the named Plaintiffs who are African-American are typical of those raised by the claims of each and every member of the African-American Subclass. The harms suffered by the named Plaintiffs are typical of the harms suffered by all children similarly situated. 25. The named Plaintiffs will fairly and adequately protect the interests of the Class. They are represented by attorneys employed by Children's Rights, Inc., a privately funded, non-profit organization with extensive experience in complex class action litigation involving child welfare systems, and by attorneys David L. Raybin and Jacqueline B. Dixon of the law firm of Hollins, 'Wagster and Yarbrough, P.c., of Nashville, who have extensive experience in civil rights and complex litigation. Plaintiffs are also represented by Richard B. Fields, Esq., in Memphis; Robert Louis Hutton, Esq. and John W. Pierotti, Esq. of Glankler Brown, PLLC, in Memphis; and Wade V. Davies, Esq. of Ritchie Fels & Dillard, PC, in Knoxville, all of whom have extensive experience in civil rights and complex litigation. Plaintiffs' counsel have the resources, expertise and experience to prosecute this action. 26. Each named Plaintiff child appears by a next friend, and each next friend is sufficiently familiar with the facts and circumstances surrounding the child's situation to fairly and adequately represent the child's interests in this litigation. 27. Defendants have acted or failed to act on grounds generally applicable to the Class,
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making declaratory and injunctive relief with respect to the Class as a whole appropriate and necessary. Counsel for the Plaintiffs know of no conflicts among members of the Class.
PARTIES Named Plaintiffs 28. Plaintiff BRIAN A. IS a nine-year-old boy who has been in state custody for approximately four years. 29. Brian A. appears in this action through his next friend, Bobbi Jean Brooks, 1824 Foster Street, Memphis, TN 38114. 30. Plaintiff TRACY B. IS a 13-year-old girl who has been In state custody for approximately one year. 31. Tracy B. appears in this action through her next friend, Pamela Pallas, 6838 Pull Tight Road, College Grove, TN 37046. 32. Plaintiffs JACK and CHARLES C. are brothers, ages 14 and seven, respectively. Jack has been in state custody for over 11 years, and Charles has been in and out of state custody since birth. 33. Jack and Charles C. appear in this action through their next friend, Linda Lloyd, 531 Whitesboro Avenue, Memphis, TN 38109. 34. Plaintiff AMY D. is a 16-year-old girl who has been in state custody for approximately three years. 35. Amy D. appears in this action through her next friend, Frank Koon, P.O. Box 833, Clinton, TN 37717. 36. Plaintiff DENISE E. is an eight-year-old girl who has been in state custody her entire
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life. 37. Denise E. appears in this action through her next friend, Linda Lloyd, 531 Whitesboro
Avenue, Memphis, TN 38109. 38. Plaintiff CHARLETTE F. is a five-year-old girl who has been in and out of state
custody her entire life. 39. Charlette F. appears in this action through her next friend, Juanita Veasy, Black
Children's Institute of Tennessee, 301 Starboard Court, Nashville, TN 37217. 40. Plaintiff TERRY G. is a 17-year-old girl who has been in state custody for
approximately two years. 41. Terry G. appears in this action through her next friend, Carol Oldham, 5944 Sedberry
Rd., Nashville, TN 37205. Defendants
42. Defendant DONALD SUNDQUIST is the Governor of Tennessee, and is sued in his official capacity. He is responsible for ensuring that all Tennessee agencies comply with all applicable federal and state law, pursuant to Section 10 of the Tennessee State Constitution. His business address is the State Capital, Nashville, Tennessee 37243.
43. Defendant GEORGE HATTAWAY is the Commissioner of the Tennessee Department of Children's Services, and is sued in his official capacity. In accordance with Tennessee Code Annotated 37-5-105, he is responsible for the proper and efficient operation ofDCS, its services and programs; for providing for the care ofthe children served by DCS; and for directing the placement of children in appropriate state programs andlor facilities, including all contracted and other programs and facilities providing child welfare services, in conformity with all constitutional,
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statutory, and regulatory requirements. His business address is the Cordell Hull Building, 436 Sixth Avenue North, Nashville, Tennessee 37243 .
STRUCTURE OF THE TENNESSEE CHILD \VELFARE SYSTEM 44. The Department of Children's Services ("DCS") was created by the State of Tennessee to protect and :provide services to children in and at risk of entering state custody and their families. DCS is legally responsible for providing services to children who are in state custody because they are abused or neglected, because they are accused of a "status offense" or adjudicated "unruly" for committing certain offenses that are unlawful only for a child (such as truancy, running away, or drinking alcohol), or because they are voluntarily placed into custody by their parents or guardians. This responsibility includes providing, for children in DeS custody, as required by law and reasonable professional standards, appropriate assessments and case plans for children; permanency planning for children; safe and appropriate out-of-home placements for children; administrative and judicial reviews of children's care and progress in foster care; and services to children in foster care, including educational services, family reunification, visitation and family support services, adoption and other permanent placement services, and services to enable children over 16 to live independently when they are discharged from DCS custody. 45. DeS divides the 95 counties that make up Tennessee into 12 administrative regions for the purpose of providing child welfare services. The major urban centers in Tennessee are regions unto themselves, as opposed to more rural counties, several of which may make up a region. Each of 12 Regional Administrators reports to senior DCS management and the Commissioner of DCS, and is responsible for managing the delivery of child welfare services in his or her particular region.
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Regional Resource Managers coordinate the availability and delivery of child welfare services in each region.
Entering DCS Foster Care 46. "Dependent and neglected" children are those whose parents are or have been neglectful and/or abusive, including physical and sexual abuse. DCS is responsible for receiving and recording reports of alleged abuse and neglect; conducting investigations of those allegations; making assessments and providing in-home services to families to prevent recurrence of abuse or neglect, when it is safe for children to remain in their own homes; and/or placing children in out-of-home care when it is determined that they are at imminent risk of harm in the care of their parent(s) or guardian(s). Most children who are committed to DCS foster care - 86% according to the Comptroller's Report - are in custody because of parental neglect or abuse. 47. Additionally, a smaller number of children - 11% according to the Comptroller's Report - are committed to custody as "unruly" children, because they have committed an offense that would not be a crime for an adult, such as truancy, drinking alcohol or running away. 48. Also, a very small number of children - approximately 2% - are committed to custody because their parents or guardians seek, voluntarily, to have them placed because the child's behavior is unmanageable or because the parents or guardians are unable to meet the child's needs. 49. Petitions to commit a child to DeS custody as dependent and neglected or as "unruly" may be filed with the juvenile court by DCS itself, by law enforcement officials, school staff, parents, family members, or any other person with knowledge of the facts supporting the petition. In certain circumstances, the emergency removal of a child from his or her parent(s) or guardian(s) may take place before a court makes a finding on a petition to commit a child to custody. Otherwise,
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dependent and neglected, "unruly" and voluntarily committed children come into custody only through the approval of a juvenile court judge. The 95 counties of Tennessee are divided into 31 judicial districts. Seventeen of these districts have Juvenile Courts, while the remaining 14 districts hear juvenile cases in General Sessions Court (these courts, although not strictly juvenile courts, are considered juvenile courts when adjudicating a juvenile's case).
Types of Placements for Children in DCS CustodY 50. "Placements" as the term applies to children in state custody, and as used by DCS, are the physical facilities, including individual foster family homes and other facilities, where children are housed and receive services. "Foster care" refers to the placements and services provided to dependent and neglected, "unruly" or voluntarily placed children in the custody of DCS. 51. Upon entering custody, children may be placed temporarily in settings where DCS is required to evaluate their needs for the purpose of determining the most appropriate longer-term placement. Such temporary placements include diagnostic and evaluation centers (often referred to as "D&E's"), emergency foster homes, and medical facilities. Children may also be placed in emergency shelters, when they enter custody or in between other placements while they are in DCS custody, if there is no other available placement for them. Emergency and other temporary placements house foster children and may also include juvenile "delinquent" children - children accused of criminal offenses, including violent and/or sexual offenses. Once an initial assessment of the child is complete, DCS is then required to place the child in a longer-term setting based upon the court's adjudication and the DCS assessment. 52. Longer-term placements include DCS-operated residential facilities (group homes or other congregate settings and institutional settings), residential facilities managed by contract
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agencies, DeS-managed individual foster homes, individual foster homes managed by contract agencies and medical or psychiatric placements. As of June 30, 1998, approximately half of the children in state custody were housed in placements under the direct control of "contract agencies," which are separate private agencies which contract with DeS to provide certain child welfare services. Des also operates the Tennessee Preparatory School (TPS), which serves dependent and neglected and "unruly" youth. Group homes include traditional residential group placements as well as "wilderness camps," which are facilities providing non-punitive camping programs for children ages 12 and older who have difficulty functioning in the home, school or community. DCS also frequently places children who have been committed to state custody into the physical custody of their biological parents or relatives, although they remain in the state's legal custody. Children in the state's custody may also be placed in "pre-adoptive" homes, where the intention is for the children to be adopted.
53. Another category of placement involves "continuum of care" contracts that provide placements connected to the state's system of managed care for physical and mental health services under Tennessee's Medicaid program called "TennCare." Funding for these placements is based on a capitated rate (reimbursement rate is set for a bundle of services for a specified population for a predetermined period) and the continuum agency is responsible for providing, under that set rate, a continuum of housing and levels of care for a child during his or her time in custody. After the initial placement by DeS, the continuum agency, in coordination with DeS staff, may move a child to a lower, less restrictive or less treatment-oriented placement ("stepped down"), or to a placement with more security or treatment ("stepped up").
54. In general, DCS decides where it will place a child in its custody (with several -16-

exceptions); ajuvenile court judge may recommend a type of placement, but generally cannot order a child placed in a specific placement. All children in foster care are in the legal custody and are the legal responsibility of DCS. In addition, those children in foster care whose parents' parental rights have been terminated are in the "guardianship" of the State.
Delivery of Services to Children in DCS Custody 55. DCS is responsible for ensuring that each child placed in foster care is provided with a case plan within 30 days of entering custody. The case plan must include the child's status, the child's physical and mental health needs, a goal for permanency, and a statement of responsibilities among the parents, DCS or the contract agency handling the case, and the case manager handling the child's case. 56. At any proceeding of a juvenile court prior to ordering a child committed or retained within DCS custody, the court must first determine whether reasonable efforts have been made to prevent the need for removal or to make it possible for the child to return home. A permanency hearing must be held within 30 days after that determination, and reasonable efforts must be made to timely place a child in accordance with the permanency plan and to complete all steps necessary to finalize apermanent placement for the child. 57. At the hearing in which a court orders a child to be placed in foster care, the judge is required to determine whether the required foster care plan has been prepared and whether the statement of responsibilities has been agreed upon, although the hearing may be extended for up to 30 days. The court must also approve the plan within 60 days of placement. All plans are subject to modification and must be updated annually. Case managers at DeS or contract agencies are responsible for designing and implementing the case plan for children placed with them. In either
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case, overall legal and case management responsibility remains with DCS. 58. In addition to preparation and review of the foster care plan, the juvenile court or a
"foster care review board" (volunteer advisory boards authorized and established by federal and state law) must review a foster child's status within 90 days of the foster care placement and at least every six months thereafter for as long as the child remains in foster care, to assess the continuing need and appropriateness of placement, compliance with the foster care plan, and progress toward alleviating or mitigating the factors resulting in foster care placement. Foster care plans must be modified as necessary and presented to the Court at least annually. These administrative and judicial reviews must also project a likely date by which the child may be returned home or placed for adoption or legal guardianship. Additionally, the agency having physical custody of the child must request a hearing within 18 months of the foster care placement, and except for children under an approved long-term foster care agreement, must request subsequent hearings at least every 18 months.
59. DeS categorizes residential placements along a scale of Level I through IV, which describes the intensity of services provided by these placements and the amount of security and staff, moving from the least restrictive and least treatment oriented (Level I) to the most restrictive and most treatment-oriented (Level IV).
60. In addition to placements and services provided directly by Des and contract agencies, entities known as Community Service Agencies ("CSA's") exist in each of the state's 12 administrative regions, for the purpose of facilitating the provision of child welfare services. Under contract to DCS, CSA's may perform many child welfare functions at the community level, including assessments of children entering state custody and placement of children. The specific
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duties of CSA's are arrived at through negotiation among the CSA and the Regional Administrator in each region. DCS remains legally responsible for the child welfare services performed by the CSA's.
61. A DCS "home county case manager" assi'gned to each child in foster care, as well as to the child's family of origin, is responsible for ensuring that the child is receiving necessary services and that the child's treatment and permanency plans are being followed. The home county case manager is responsible for monitoring the circumstances of the child's family and their compliance with terms and conditions for regaining custody of the child, as well as ensuring that the family receives appropriate services. However, the home county case manager is not responsible for regular contact with the child. This is the responsibility of a Des "residential case manager," assigned to each foster care placement, who is also responsible for assisting the foster parents in caring for the children in the home. Residential case managers are required by DeS policy to make face-to-face contact with the child at least once a month regardless of the child's placement.
62. For children in the majority of Tennessee's 95 counties, if the parental rights of a child's parents are terminated, case work responsibility (and the case file) for the child is transferred to a separate DeS division, which is responsible for identifying an adoptive family resource (or other permanent placement) and for finalizing the child's adoption. The involvement of the existing DeS case managers end, and different DeS adoption case managers/adoption workers, located in a different organizational unit within DCS, are assigned to the child. An exception is in Davidson county and the surrounding areas, where the adoption workers are located at the "Center for Adoption," a physically separate entity affiliated with a private contractor. Another exception is a program in Shelby County serving a very small number of adoption-eligible children called the
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"Special Needs Adoption Program" or "SNAP." LEGAL FRAMEWORK
63. Plaintiffs allege that Defendants are violating their rights under the First, Ninth and Fourteenth Amendments of the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 620-27, 670-679a, and regulations promulgated thereunder; the Americans with Disabilities Act ("ADA"), 42 U.S.c. §§ 12101 et~; the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 794, 794a; Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d et ~ and its implementing regulations, 42 C.F.R. § 80.3 et~ (as to the African-American Subclass only); and as third party beneficiaries to Tennessee's "State Plan" contract with the federal government pursuant to the Adoption Assistance Act, under federal common law.
64. These statutes and constitutional standards establish a broad range of general and specific obligations that Defendants are failing to meet in administering Tennessee's child welfare system.
The United States Constitution 65. The Fourteenth Amendment to the United States Constitution guarantees to each child in state custody the substantive due process right to be free from harm and the right to conditions of state custody that are reasonably related to the purpose of that custody. The right to be free from hann includes the right to treatment in accordance with reasonable professional standards, and the right to the services necessary to prevent children from deteriorating or being harmed physically, psychologically or otherwise while in state care, including but not limited to safe and secure foster care and other placements, appropriate monitoring and supervision, case planning and management,
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planning and services directed toward ensuring that the child can leave state custody and grow up in a permanent family, and medical, psychiatric, psychological and educational services.
66. The Fourteenth Amendment also guarantees to all children the substantive due process right to protection from state-created dangers. This includes the right not to be removed from their homes and taken into custody and subsequently placed out of custody and into circumstances, which are known or should be known to Defendants, that render the children vulnerable to danger and place them at risk of harm.
67. The Fourteenth Amendment further guarantees the procedural due process right not to be deprived of federal-created or state-created liberty or property interests without due process of law. The federal-law entitlements to which children have a constitutionally protected interest arise from the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997,42 U.S.c. §§ 620-27, 670-679a, and regulations promulgated thereunder; the Americans with Disabilities Act ("ADA"), 42 U.s.c. §§ 12101 et~; the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.s. c. §§ 794, 794a; Title VI of the Civil Rights Act of 1964, 42 U.S.c. § 2000d et ~ and its implementing regulations, 42 C.F.R. § 80.3 et ~ (as to the AfricanAmerican Subclass only).
68. The state-law entitlements to which children have a constitutionally protected interest arise from the Tennessee State Constitution, Article XI, Section 12; and Title 37 of the Tennessee Code and its implementing regulations. These laws require, among other things, that Defendants take steps necessary to:
a. provide family reunification services in order to facilitate the reunification of the child safely and appropriately within a timely fashion, to each family with a
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child in foster care, as provided by statute; b. ensure, in the circumstances provided by statute, that whenever a child is
removed from such child's home and placed in DeS custody, that DeS seeks to place the child safely with a fit and willing relative;
c. prohibit, in the circumstances provided by statute, the return of a child found to be dependent and neglected as a result of brutality or abuse, or as a result of severe abuse, to the custody or residence of any person who engaged in or knowingly failed to protect the child from the abuse;
d. prepare a foster care plan for each child in care within 30 days of the date of foster care placement, with all required elements, and modify and monitor the plan as necessary, as required by statute and regulations;
e. ensure, as provided by statute, that a report is prepared and submitted for each child in foster care on the progress made in achieving the goals set out in the plan, and that administrative or judicial reviews of each child's plan and the progress reports are conducted within 90 days of the date of foster care placement, and no less frequently than every six months thereafter, for so long as the child remains in foster care;
f. ensure, as required by statute, that a permanency hearing is held within 12 months of the date of foster care placement for each child in foster care, and ensure subsequent permanency hearings are held no less frequently than every 12 months or as otherwise required, for as long as a child remains in foster care;
g. prohibit the placement in temporary shelters of delinquent or alleged -22-

delinquent children with children alleged to be or adjudicated dependent and neglected, as provided by statute;
h. restrict to 30 days the time children may spend in temporary placements without needed services, as provided by statute;
i. arrange, in the circumstances provided by regulation, for appropriate visitation for sibling groups or other extended family members;
j. provide each child access to appropriate education as required by the Tennessee Department of Education, statute and regulations; to assure appropriate placement for children with disabilities, DeS must provide access to appropriate education services as required by the state board of education;
k. license, inspect, staff and supervise all placements as required by statute and regulations, and ensure each home is equipped and staffed to properly provide for the physical, social, moral, mental, educational or religious needs of all children kept therein;
1. ensure that no greater number of children are kept at anyone time on the licensed premises than is authorized by the license, and that no child is kept in a building or place not authorized by the license;
m. restrict the capacity of emergency shelters as provided by regulations; n. provide maternity services, in the circumstances provided by regulations, for each child in foster care; and o. in the case of a child who has reached 16 years of age, determine and provide, in the circumstances provided by statute and regulations, the services
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needed to assist the child to make the transition from foster care to independent living. 69. The First and Ninth Amendments of the United States Constitution guarantee the rights to privacy and family integrity, and grant children the right not to be removed from their families absent a showing of compelling necessity, and, once removed, the right to services in accordance with reasonable professional judgment reasonably likely to effect reunification and otherwise enable children to leave state custody and grow up in a permanent family. The Adoption Assistance and Child Welfare Act of 1980, as amended by the
Adoption and Safe Families Act of 1997 70. Under the Adoption Assistance and Child Welfare Act of 1980 as amended by the Adoption and Safe Families Act of 1997 (collectively the "Adoption Assistance Act"), states receive certain federal reimbursements so long as they enter into a plan approved by the federal Department of Health and Human Services and comply with its terms. The State of Tennessee receives federal funding under the Adoption Assistance Act and has submitted such a plan, which is a legal contract between the federal government and state (the Tennessee "State Plan" contract), agreeing to provide child welfare services pursuant to the obligations under the Adoption Assistance Act. 71. The Tennessee "State Plan" contract includes the obligations to the Plaintiff children under the Adoption Assistance Act and also incorporates provisions of Tennessee Code § 37 governing DCS, and Tennessee statutes and rules governing practice in state juvenile court, including as applicable the state general sessions, circuit, and chancery courts sitting on juvenile matters, and each statute's implementing regulations. These incorporated provisions have the force of law and are binding on the Defendants. Plaintiffs and Class member children eligible for those
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child welfare services are the intended beneficiaries of the Tennessee "State Plan" contract. 72. The Adoption Assistance Act requires Defendants, as a condition of receiving federal
funds, to implement and operate in Tennessee: a. a service program designed to help children, when safe and appropriate,
return to the families from which they have been removed, and when this is not possible, to be placed for adoption, for legal guardianship, or in some other planned, permanent living arrangement; 42 U.S.C. §§ 671(a)(16), 675(1)(B), 671(5)(B); and
b. an information system from which the status, demographic characteristics, location and goal of every foster child can readily be determined; 42 U.s.c. § 622(b)(10)(B). 73. The Adoption Assistance Act and relevant regulations further require that if Defendants accept federal funds, they shall take the steps necessary to ensure that:
a. foster family homes and child care institutions are licensed, re-licensed and operated in conformity with appropriate national standards; 42 U.s.c. § 671 (a) (1 0);
b. each child in need of a foster care placement is placed in the least restrictive, most family-like setting available, consistent with her best interests and individual needs; 42 U.s.c. § 675(5)(A);
c. each foster child with a permanency goal of other than return home is provided with written documentation of the steps taken to locate and place the child in an adoptive home or other permanent placement and the steps taken to finalize such a placement; 42 U.S.c. §675(1)(E);
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d. each foster child is provided with a written case plan, containing specified elements, that is reviewed and updated at specified intervals, and that services are provided in accordance with that plan; 42 U.S.c. §§ 671 (a)(1 6), 675(1) & (5)(B);
e. each foster child receives proper care while in state custody and that she, her parents and her foster parents receive the services necessary to address her needs and to assure her return home or her referral to an alternative permanent placement; 42 U.S.c. §§ 671(a)(22), 675(l)(B);
f. the status of each foster child is reviewed once every six months either administratively or judicially to determine the safety, continuing necessity for, and appropriateness of placement, the extent of compliance with the child's case plan and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care; 42 U.S.C. §§ 671 (a)(1 6), 67S(S)(B), 622(b)(10)(B)(ii); and
g. each foster child receives a permanency hearing by a family court no later than 12 months after her original placement and periodically thereafter to determine and evaluate the status of and plan for the child; 42 U.S.C. § 67S(5)(C). 74. The Adoption Assistance Act and relevant regulations further require that if Defendants accept federal funds for children in their custody, they must file a petition to terminate parental rights in accordance with a statutory time schedule, and concurrently identify, recruit, process and approve a qualified family for adoption, regarding: a child who has been in foster care under the responsibility of the state for 15 ofthe last 22 months; a child who a court of competent jurisdiction has determined to be abandoned; and a child in custody where the parent is determined by a court
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of competent jurisdiction to have committed an enumerated crime involving child abuse. Defendants are not required to file a petition to terminate parental rights only if: the child is being cared for by a relative; there is a documented, compelling reason why termination would not be in the best interest of the child; or, the child's family has not been provided, consistent with the time period in the case plan, the services that have been deemed necessary to safely reunify the child with her family in the circumstances where reasonable efforts to unify are required. 42 U.S.c. § 675(5)(E).
The Americans with Disabilities Act and The Rehabilitation Act of 1973 75. The Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 prohibit discrimination in federally funded programs against individuals with handicaps or disabilities. These laws require that programs such as child welfare and foster care be administered in a manner that enables children with handicaps or disabilities to fully participate in and receive the benefits of the programs and to be placed in the least restrictive appropriate setting.
Title VI of the Civil Rights Act of 1964 76. Under Title VI of the Civil Rights Act of 1964, any state program or activity which receives federal financial assistance is prohibited from excluding from participation, denying benefits to or subjecting to discrimination, any person on the basis of race, color, or national origin. As Defendants receive financial assistance for children in their custody, Title VI applies to Defendants and to the administration and provision of child welfare services by DeS. 77; Additionally, the United States Department of Health and Human Services has issued regulations, pursuant to Title VI, that prohibit any state programs or activities which receive federal financial assistance from utilizing criteria or methods of administration which have the effect of
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subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing the accomplishment of the objectives of the programs with respect to individuals of a particular race, color, or national origin.
FACTUAL ALLEGATIONS REGARDING NAl\IIED PLAINTIFFS A. BRIAN A.
78. Brian A. is a nine-year-old boy who currently lives in an emergency shelter in Shelby County, where he has lived for the past seven months because DCS has failed to provide him with an appropriate placement. As a result, Brian waits indefinitely for a longer-term placement, without any social work plan or goal to get him out of foster care and into a permanent home, and without necessary treatment, case work services or appropriate schooling, in a grossly inappropriate and overcrowded facility meant for extremely short stays of under thirty days. He has little or no contact with any of his five siblings. Brian wants desperately to get out of the shelter and into a safe, stable and permanent home, and to spend more time with his brothers and sisters.
79. Brian was removed from his biological parents' custody in 1996 along with five of his siblings because of abuse and neglect, due in part to his parents' drug abuse. Brian was initially placed in an individual foster home in the winter of 1996 with one sibling and a total of six other foster children who shared one small bedroom. He lived there until the summer of 1999, when he began developing increasingly difficult emotional and behavioral problems in school and at home, and his foster parent asked DCS to remove him from their home; all the while, DeS failed to provide appropriate services to address his problems.
80. DeS removed Brian from that foster home and placed him in another foster home in September of 1999, where his behavioral and emotional problems at home and at school became
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severe, and DeS continued in its failure to provide appropriate services for his problems. He tried several times to run away during school, and also while in day care. School officials regularly called Brian's foster parents to pick him up from school for disruptive behavior, including starting fights and destroying furniture and other property in his classrooms. At the request of his foster parents, Brian received several counseling sessions, where he stated that his prior foster parent, with whom he lived for three years, regularly disciplined him by beating him and the other children with a walking cane.
81. After less than two months, his foster parents determined that Brian needed more specialized care and informed Des that they could no longer handle him. Although DeS informed Brian's foster parents that he would be removed from their home and placed in a therapeutic foster home, DeS instead removed him and placed him in an emergency shelter in late October of 1999. DeS has left him in the shelter for the past seven months; he is still living there today.
82. In the shelter, Brian lives with over twenty other boys, ages six to sixteen, including many who were removed from violent emergency situations as well as boys accused of delinquent offenses including violent crimes and sexual assaults. The cramped, overcrowded living arrangements in the shelter are designed for only short emergency stays, as placements in shelters are required by law not to exceed thirty days. He receives no therapy to address the emotional trauma he has experienced: he has only been evaluated by a counselor at the shelter who determined that he has "anger problems." There is no active permanency plan or plan of care that Des has developed or is implementing for him. Brian is not receiving appropriate and required case work services. He is also being deprived of his right to an appropriate education. "School" consists of two classrooms in which all twenty boys, ages six to sixteen, are taught together by two instructors,
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and where meaningful and legally required educational services are impossible, because the classrooms are designed only to keep a high number of children of widely different ages and abilities busy during their very short stays.
83. Brian has no opportunity to form lasting friendships or attachments in the shelter. During his entire seven months in shelter care, his only contact with any of his siblings involved·a one day visit last Christmas and another approximately one month ago, when his sister Karesha's foster mother volunteered to take him home for a night, and returned him to the shelter the next day. While Brian enjoys these rare visits with his sister, he knows the happiness of being with a family member and in a loving home is only short-lived and that he will soon be back in the shelter.
84. Although he has been in DCS custody for approximately four years, Brian has not been legally freed for adoption. Defendants have failed to provide necessary services to determine if he can be safely returned to his mother, and have failed to take reasonable steps to find him an adoptive or other permanent home or to make him legally available for adoption. He has had a few isolated, supervised visits with his biological mother in DCS offices over the past four years, and almost no contact with his siblings. Brian, who is African-American, has been deprived of his rights while in foster care to an appropriate placement and services, and to reasonable efforts to secure a permanent home for him, in part, because Defendants make even less effort to secure these rights and benefits for African-American. children in DCS custody than they do for Caucasian children.
85. Defendants' actions and inactions have caused him, and continue to cause him, irreparable harm. Defendants have violated Brian's constitutional and statutory rights by failing to protect him from harm; by failing to provide necessary services and an appropriate permanent placement for him once he entered foster care; by placing him in an emergency shelter or other
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emergency, temporary placement for more than thirty days, and contrary to his individual needs and . best interests and reasonable professional standards; by placing him at undue risk of harm by placing him with dangerous children, including children accused of violent crimes or sexual offenses, in overcrowded shelters or other emergency temporary placements; by failing to make timely and meaningful casework contacts and monitor his progress in foster care in accordance with reasonable professional standards; by failing to treat him in accordance with reasonable professional standar-ds; by failing to provide him with services necessary to prevent him from deteriorating physically, psychologically, emotionally, educationally or otherwise while in state custody; by failing to support the family relationship by not providing child-sibling visits as appropriate; by failing to provide appropriate management and supervision while in DCS custody in accordance with reasonable professional standards; by failing to provide case management and planning in accordance with reasonable professional standards; by failing to develop and implement a viable permanent plan that will allow him to leave foster care and secure a safe and appropriate permanent home in accordance with reasonable professional standards; by failing to conduct appropriate administrative and judicial reviews of his care and progress as required by law and reasonable professional standards; by utilizing criteria or methods of administration which have the effect of subjecting him to discrimination on the ground of his race and which have the effect of substantially impairing the accomplishment of the objectives of Tennessee's child welfare system as it applies to him; and by excluding him from participation in, or denying him the benefits of, or subjecting· him.. jo discrimination under a program receiving federal financial assistance, on the basis of his race. B. TRACYB.
86. Tracy B. is a 13-year-old girl who currently lives in a foster home in Coffee County. -31-

Her current home is at least her fifteenth foster care placement since she was taken into DeS custody only one year ago, because Defendants failed to provide an appropriate assessment of her needs upon entering DeS custody and have failed to provide appropriate placements, and services in those placements, to meet her needs. At a DeS "staffing" in January of 2000, DeS first determined that after thirteen placements and continued emotional and behavioral problems, Tracy should be placed in a Level II foster home. No Level II placements were or are available, so Tracy remains on a waiting list for an appropriate placement. Her current permanency goal is reunification with her mother, but Des has failed to take reasonable steps and provide appropriate services to facilitate her return home to her mother.
87. Tracy first entered state custody when she was four years old after she was sexually abused by her biological father. The state placed her in a series of foster homes for four years; her siblings - Jerry (then seven years old), Jeffrey (four), David (two) and Marla (infant) - remained in her mother's horne. DeS returned physical and legal custody of Tracy to her biological mother in 1997 (her father was out the home permanently). She remained at horne with her siblings, her biological mother and a new stepfather until May of 1999. During that time Tracy began starting fights, drinking, missing school and stealing, and was increasingly emotionally unstable and difficult for her mother to manage. In May of 1999, Tracy reported an incident of corporal punishment by her mother to her school, after which Tracy and all of her siblings were removed from their mother's custody and placed into foster care.
88. The day Tracy made the report of corporal punishment, all five siblings were placed by DeS with their grandmother. Within two months., the two youngest children were returned to their mother's custody. The oldest, Jerry (now 17), has been moved back and forth among delinquency
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and foster care placements and remains in DeS custody. Jeffrey (now 13) was raped by several other children in a foster home (he remained in that home for six months afterwards and the incidents were not reported to his mother), and was eventually placed in a wilderness camp where he was physically abused by a staff member, shortly after which legal and physical custody were returned to his mother in February of 2000.
89. Many of Tracy's 15 foster home placements have lasted only a day or two before they disrupted. Tracy has also run away from several foster homes, because she has been so unhappy in them. Tracy has been returned several times to foster homes from which she had previously been ej ected, because Defendants have failed to seek and secure an appropriate foster home or other placement for her, and have failed to appropriately monitor and supervise her care while in state custody. Instead, DeS places children such as Tracy wherever a bed or slot is available, rather than based on the child's needs.
90. Tracy's permanency plan goal since she entered Des custody in ~'1ay of 1999 has been reunification with her mother. Tracy's mother was required to complete a parenting course and participate in visits with her daughter. Although Tracy's mother completed the parenting course, Des has failed to take reasonable steps and provide services to facilitate a safe reunification between Tracy and her mother. For at least the last six months, DeS has failed to provide any regular plan for visits between Tracy and her mother, and has not arranged even a single family therapy session. Tracy's mother is unable to arrange visits because DeS regularly fails to inform her before, and even shortly after, they move her daughter to another foster home. Tracy has seen her siblings only once in the last six months because Defendants have failed to provide services to Tracy to help maintain these important family ties.

91. Due to Defendants' actions and inactions, Tracy's emotional and behavioral problems

have deteriorated significantly over her 15 successive foster placements over the past year, and she

has been, and continues tp be, irreparably harmed. She has no sense of stability in her life and little

or no contact with her~aInily. She does not receive needed counseling or therapy to address her"

. . . .~-..

an -

,

emotional problems, and ~oes not have the opportunity to receive appropriateeduGation, at least

. .'
in part due to her constantiy changing foster placements. Tracy has' heert certified to receive special'

education services, but t:fcs has failed to seek special 'education services fo~' her. Des has failed

to take reasonable steps to either reunify her with her biological mother, as set forth in her

permanency plan, or to place her in an alternative permanent home.

92. Defendants have violated Tracy's constitutional and statljtory rights by failing to protect

her from harm; by failing to provide her with appropriate foster care placements while in state

custody, as required by law and reasonable professional standards; by failing to provide her with

legally required services, consistent with reasonable professional standards, necessary to prevent her

from deteriorating psychologically, emotionally, educationally or otherwise while in state custody;

by failing to provide her with an appropriate and comprehensive assessment when she entered state

custody; by failing to tak.e reasonable steps and provide approp.riate services to reunify her with her " .-
mother; by failing to SUPP?rt the family relationship by not providing parent-child and child-s,ibling ..... ,
visits as appropriate; by f~{lirig to provide appropriate case management, planning, and supervision
. :. ~.
' . " ~'.
while she is in state ~s-t..od.....Y. :, consistent with reasonable professional. standards; by failing to conduct
appropriate administra~i~~ and judicial reviews of her care and p~ogr~ss as required by law and

., .' .~..

.

reasonable professional ~taridards; and by failing to make timely and meaningful casework contacts

and failing to monitor .~er progress while in foster care, all in accordance with reasonable

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professional standards. C. JACK AND CHARLES C.
93. Jack and Charles C. are brothers who are currently ages 14 and seven, respectively. They are part of a sibling group of 11 children (ages one to 14) from the same biological mother, all ofwhom were successively removed from her custody because of abuse and neglect stemming from her long time addiction to and abuse of crack cocaine. Jack currently lives in a group home in Shelby County, his twenty-third foster home as a result of Defendants' gross failure to provide appropriate placements and services for him while in DCS custody. His brother Charles has been living in a therapeutic foster home in Davidson County since 1997, when an inappropriate reunification attempt left him permanently brain damaged and physically and developmentally handicapped.
94. Jack lived with his biological mother under dangerous and neglectful conditions until one day, at the age of three, he reported his mother to the police in connection with her abuse of crack cocaine. DCS (then DHS) removed him from his mother's custody and placed him in a foster home, where he lived until the age of seven. During that time period, his behavior became increasingly violent; Jack regularly threw raging tantrums and acted out in school. Despite numerous requests to DHS from his foster mother, DHS failed to provide any counseling services for three years, when he was diagnosed with mental illness and placed on medication which made him hallucinate. During one episode, he climbed up on a roof and threatened to jump off. Mter
Jack was hospitalized for three months in a mental health facility, pHS decided not to return him
to' his original foster parent. 95. After his brief hospitalization (in 1992), DCS moved Jack through 22 foster care -35-

placements. DCS has performed several psychological evaluations of Jack during his 11 years in state custody, but has failed to provide him with the necessary services and appropriate placements to address his serious emotional problems. Now 14, Jack currently lives in a group home in Shelby County where he has been for a little over one year. He is in the eighth grade in public school, where his emotional problems and constant uprooting have greatly impeded his educational development. He remains on prescription medication for behavioral control, but does not receive needed regular counseling and therapy to address his ongoing emotional problems. Although Jack is a special needs/disabled child due to his emotional and behavioral problems, DCS has failed to seek and secure educational and other support services necessary to allow him to participate fully in the child welfare system or to benefit from its services.
96. Recently, Jack suffered a dislocated knee, torn ligaments and many bruises when staff in the group home improperly restrained him during an emotional outburst, because Defendants' have failed to provide adequate training and supervision in group homes to ensure the safety of children in such homes.
97. Jack has been legally free for adoption since 1996, when his biological mother's rights were terminated as to him. He continues to languish in state custody, because Defendants have failed to take reasonable steps to find him an adoptive or other permanent home. Jack, who is African-American, has been deprived of his rights while in foster care to an appropriate placement and services, and to reasonable efforts to secure a permanent home for him, in part, because Defendants make even less effort to secure these rights and benefits for Mrican-American children in DCS custody than they do for Caucasian children.
98. From the time Jack was briefly hospitalized at age six until he was 12, DCS failed to -36-

provide services to allow him any visits or other contact with his many brothers and sisters. Then, two years ago, at the request of his original foster parent, Jack had several visits with his siblings at her home and last year he began weekend overnight visits there. DCS has denied a more extensive visitation arrangement because of the many children (six foster and two adoptive) in that home, although DCS hilS asked the original foster parent if she would adopt Jack. While the number of children already living in the home and Jack's severe emotional problems would make adoption in that home extremely difficult, the foster parent has asked DCS what financial, counseling or other service support would be available if she were to adopt Jack, but has received no response. DCS recently informed Jack's original foster parent that Jack might be moved yet again.
99. Jack knows his current placement can only be temporary and that he will likely be moved soon for the twenty-fourth time. He is filled with anger, hatred and frustration over his constant uprooting, and desperately wants to be placed in a permanent, stable, loving home. He has recently been writing poems about being "tossed around" and "stepped on," and in one poem he wrote that he would "rather be dead."
100. Charles, now seven, was removed from his biological mother's custody at birth when he tested positive for cocaine resulting from his mother's continued crack addiction. Charles was placed in the same foster home where his brother Jack was first placed, and lived there with three other siblings and several other foster children until the age of five. At that time, Charles was in a regular kindergarten class, and despite some behavioral difficulties and emotional challenges stemming from his drug poisoning at birth, he was living happily and maintained close relationships with his foster mother, siblings and other foster children. At that time, Charles' permanency goal was reunification with his mother, although DCS failed to take reasonable steps to evaluate whether
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reunification was an appropriate goal, and failed to provide appropriate services to facilitate a safe reunification, including helping his mother address her drug addiction and teaching her to better care for her children.
101. While his mother c0t:1tinued to abuse crack cocaine, DCS removed Charles at age five, along with a four-year-old-sister, from their foster home and placed them back with their mother without taking appropriate steps to determine whether the children could be left safely in their mother's care. Once the children were returned home, DCS failed to provide appropriate services and supervision to ensure the children's safety, and not long after his return, Charles ingested some of his mother's drugs, fell into a violent seizure and suffered massive brain damage. In addition to their failure to provide appropriate reunification services to facilitate a safe return, Defendants also failed to provide adequate case work services and monitoring to ensure Charles' safety once he was returned. Instead, DCS placed Charles into circumstances it knew or should have known were extremely dangerous. He and his sister were removed from their mother's custody after Charles' ingestion of his mother's drugs, and his sister was placed back with the original foster parent. The permanent brain damage Charles suffered as a result of that incident prevented his return to his foster mother and siblings. DCS has since moved him in and out of several foster care placements and he currently lives in a therapeutic foster home in Davidson County. Charles suffers from severe and permanent mental, physical and emotional deficits, and \y:ears a helmet while he is awake to prevent him from harming himself. Recently, at a rare visit with his siblings and original foster mother, Charles was unable to recognize any of these people with whom he was so close before the incident.
102. Charles' mother's parental rights were terminated as to him in 1997. He has been in -38-

several foster placements since then, but Defendants have not made reasonable efforts to seek and secure a permanent adoptive family for him. Charles, who is African-American, has been deprived of his rights while in foster care to an appropriate placement and services, and to reasonable efforts to secure a permanent home for him, in part, because Defendants make even less effort to secure these rights and benefits for African-American children in DCS custody than they do for Caucasian children.
103. As a result of Defendants' actions and inactions, Jack and Charles have been and continue to be irreparably harmed. Defendants have violated Jack's and Charles' constitutional and statutory rights by failing to protect them from harm; by failing to provide them with safe, secure and appropriate placements; by taking Charles into state custody and subsequently placing him into circumstances which Defendants knew or should have known would have and did render him vulnerable to danger and placed him at risk of harm and which in fact resulted in severe and permanent harm to him; by failing to provide appropriate supervision to ensure the safety of children placed in group homes; by failing to provide them with legally required services, consistent with reasonable professional standards, necessary to prevent them from deteriorating physically, psychologically, emotionally, educationally or otherwise while in state custody; by failing to implement appropriate, legally mandated plans of care and permanency plans to assure that Jack and Charles are cared for and placed in permanent homes, consistent with reasonable professional standards; by failing to conduct appropriate administrative and judicial reviews of their care and progress as required by law and reasonable professional standards; by failing to make a comprehensive assessment of Jack when he entered state custody; by failing to take reasonable steps to ensure that Jack leaves foster care or achieves permanency within a reasonable time; by failing
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to make timely and meaningful casework contacts and failing to monitor these children while in foster care; by failing to make a reasonable detennination about whether Charles' reunification was appropriate, and by failing to make a reasonable assessment and take reasonable steps toward providing the services necessary to detennine if he could be safely reunified with his parent; by failing to adequately monitor Charles' safety and progress when returned home with his mother; by failing to support the family relationship by not providing child-sibling visits as appropriate; by failing to provide case management and planning in accordance with reasonable professional standards; by failing to provide Jack and Charles, as children with disabilities, with the least restrictive placement and services appropriate to their particular needs as required by law and reasonable professional standards; by utilizing criteria or methods of administration which have the effect of subjecting them to discrimination on the ground of their race, and which have the effect of substantially impairing the accomplishment of the objectives of Tennessee's child welfare system as it applies to them; and by excluding them from participation in, or denying them the benefits of, or subjecting Jack and Charles to discrimination under a program receiving federal financial assistance, on the basis of their race. D. AI\tfy D.
104. Amy D. is a ?ixteen-year-old girl from East Tennessee who currently lives in a Level III facility in Knox County. Since entering DCS custody in 1997 as a dependent and neglected child, DCS has moved her in and out of fourteen foster care placements - including individual foster homes, a shelter, hospitals and Level II and Level III placements - because Defendants failed to provide an appropriate assessment of her needs when she entered DCS custody, and have failed to provide appropriate placements and services to address her serious emotional problems.
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Defendants have also failed to provide appropriate medical services to Amy while in DCS custody, and have grossly over-medicated her, causing her serious harm. Amy is an intelligent girl but is poorly prepared to take care of herself once she reaches 18 and is discharged from DCS custody. She has not received appropriate services to enable her to live on her own, although she desperately needs them.
105. Amy lived much of her early childhood in Virginia, where she and her two older sisters were removed from their parents' custody for three years because of abuse and neglect, after which they were returned to their parents' custody. The family settled in East Tennessee in 1992. In 1997, Amy's father petitioned to place her into Des custody as an "unruly" child, but at the hearing on the petition, the court found Amy to be dependent and neglected. One form of abusive punishment used by Amy's father involved throwing a mattress on top of her and then beating her by kicking the mattress.
106. DeS first placed Amy in a diagnostic and evaluation ("D&E") center for 30 days while her father's "unruly" petition was pending. The court then made its finding of dependency and neglect, and DeS then placed Amy in an emergency shelter in Elizabethton. From there, DeS moved Amy to an individual foster home in Knox County which was not equipped to address her needs. That placement lasted less than one month, because Amy's behavior became increasingly uncontrollable while DeS failed to provide her with services for her emotional problems. Her foster parents requested that DCS find her another home, and DCS removed her and placed her in another foster home in the Tri-Cities region. That placement lasted five months, as Amy continued to act out and began setting fires in the home. DCS again failed to provide Amy and her foster mother with desperately needed services to address Amy's deteriorating emotional problems. DeS removed
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her from that home and placed her in another D & E for 30 days, where it was determined that Amy required a Level III placement.
107. Contrary to her needs and best interests, and contrary to its own assessment of her needs, DCS then placed Amy in a regular foster home, which lasted only one day, and then in another foster home, which lasted only two weeks, as her untreated problems became more unmanageable. DCS then moved Amy to a hospital for another 30 day evaluation, where it was again determined that she required care and services in a Level III facility. DCS then managed to place Amy in a Level III facility, but after only two weeks DCS uprooted her again, and placed her in a Level II group facility. Due to Defendants' continued, gross failure to meet her needs, Amy's condition further deteriorated.
108. The staff at the Level II facility could not control Amy's behavior, and she was placed on heavy medication which made her hallucinate and hear voices telling her to hurt herself and others. DeS moved Amy to a hospital for a five day evaluation, and she was returned to the Level II facility, where her mental and physical condition worsened. The hallucinations became more frequent, her personal hygiene became poor, and in a short time Amy's weight more than doubled, exploding from 115 to over 240 pounds. DeS moved Amy to a hospital for yet another 30 day evaluation, where it was determined, among other things, that Amy was emotionally disturbed, that medications were likely contributing to her hallucinations and delusions, and that major disruptions were contributing to her dire emotional condition. Dudng_the evaluation, she was visited in the hospital by her CASA worker, who found her living in a dirty bedroom with food and garbage all over the floor, and so over-medicated that she was slurring her speech and could barely form words. Her obesity continued to be entirely ignored and unaddressed by the staff.
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109. After that 30 day evaluation, DCS moved Amy into her fourteenth foster placement, a Level ill facility in Knox County, where she has remained since that time. Defendants' goal for Amy is "permanent foster care." She remains heavily medicated, and is often separated and restricted from contact with other children in the facility. Amy still does not receive appropriate services to address her emotional problems, and DCS has failed to provide her with necessary services to enable her to live on her own when she is discharged from DCS custody at age 18. She is a bright girl (a recent IQ test indicated a measure of 120) but her emotional problems prevent her from fully participating in school. Her April 1999 permanency plan noted that Amy can find nothing to motivate her. Amy has written a song that includes the line: " I wonder if anybody will ever see the good that is within me."
110. As a result of Defendants' actions and inactions, Amy has been and continues to be irreparably harmed. Defendants have violated Amy's constitutional and statutory rights by failing to protect her from harm; by failing to provide her with safe, secure and appropriate foster care placements, as required by law and reasonable professional standards; by failing to treat her in accordance with reasonable professional standards; by failing to provide an appropriate and comprehensive assessment of her needs when she entered DeS custody; by failing to provide her with legally required services, consistent with reasonable professional standards, necessary to prevent her from deteriorating physically, psychologically, emotionally or otherwise in state custody; by failing to provide appropriate supervision; by administering inappropriate and harmful medications to her while in DCS custody; by failing to conduct appropriate administrative and judicial reviews of her care and progress as required by law and reasonable professional standards; by failing to provide her, as a child with disabilities, with the least restrictive placement and services
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appropriate for her needs; and by failing to· provide her with legally mandated independent living and transitional services to enable her to live on her own once she is discharged from DCS custody at age eighteen. E. DENISE E.
Ill. Denise E. is an eight-year-old girl, who was removed from her mother's custody at birth due to abuse and neglect and placed in a foster home in Shelby County, where she has lived her whole life. Denise lives in the same foster home as seven of the siblings of Jack and Charles C., but is unrelated to them. Other than a visit by a case manager during the first week of her life, for her first eight years in state custody, Denise was never seen by a case manager; did not receive any services to monitor her care, needs or development; was not provided with appropriate judicial and administrative reviews of her care while in DeS custody; and did not have permanency plans or plans of care created and implemented to address her needs and to minimize her stay in foster care.
112. Denise was legally freed for adoption over five years ago, when her parents' rights were terminated as to her. However, for five years, Defendants failed to take reasonable steps to seek or secure an appropriate adoptive home for her. She met an adoption worker - after eight years in DCS custody - for the first time this past year, but DeS is still failing to take reasonable steps to find her a permanent home. Denise, who is African-American, has been deprived of her rights while in foster care to an appropriate placement and services, -and to reasonable efforts to secure a pennanent home for her, in part, because Defendants make even less effort to secure these rights and benefits for African-American children in DCS custody than they do for Caucasian children.
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113. Denise currently lives with five other foster children and two adopted children. During her lifetime, DeS has placed as many as 15 foster children at one time in her home. While her foster mother continues to make extraordinary efforts to provide individual love and care to Denise and the other foster children, DeS has failed to maintain a reasonable number of foster children in that home so that they can each receive the attention they need.
114. DeS recently asked Denise's foster mother if she would adopt Denise. While the number of children already living in her home would make Denise's adoption in that home unlikely, Denise's foster mother recently asked DeS what financial, therapeutic or other services and supports would be available if she were to adopt Denise, but DeS has not responded. Denise wants desperately to be placed pennanently in a stable, loving home, but DeS continues to deprive her of the opportunity to fonn a pennanent relationship by failing to make reasonable efforts to recruit or identify a family that could provide an appropriate permanent home for this child.
115. As a result of Defendants' actions and inactions, including their virtually complete failure to provide fillY social work, monitoring or support services for Denise for virtually her entire life in DeS custody, Denise has been and continues to be irreparably harmed. Defendants have violated Denise's constitutional and statutory rights by failing to protect her from harm; by failing to make timely and meaningful case work contacts and failing to monitor her progress in foster care; by failing to provide case management, planning and supervision in accordance with reasonable professional standards; by failing to provide her with legally required services, consistent with reasonable professional standards, necessary to prevent her from deteriorating psychologically, emotionally or otherwise in state custody; by failing to create and implement appropriate, legally mandated plans of care and permanency plans to assure that she is cared for and placed in a
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pennanent home, consistent with reasonable professional standards; by failing to conduct appropriate administrative and judicial reviews of her care and progress as required by law and reasonable professional standards; by utilizing criteria or methods of administration which have the effect of subjecting her to discrimination on the ground of her race, and which have the effect of substantially impairing the accomplishment of the objectives of Tennessee's child welfare system as it applies to her; and by excluding her from participation in, or denying her the benefits of, or subjecting her to discrimination under a program receiving federal financial assistance on the basis of her race. F. CHARLETTE F.
116. Plaintiff Charlette F. is a five-year-old girl from Davidson County. She has been in and out of foster care for her entire life, and has been living in the same foster home, along with her brother John, for the past two-and-one-half years. She has suffered repeated abuse and neglect including severe and repeated sexual abuse by her biological mother, a grandparent and several uncles - as a result of Defendants' failure to provide adequate services, monitoring and supervision necessary to ensure the safety of children who are returned to their parents or placed with relatives. She has been moved through at least six inappropriate foster placements and has not received - and still does not receive - desperately needed regular counseling and therapy to address her emotional problems, because Defendants failed to provide an appropriate assessment of her needs when she entered DCS custody, and failed to provide appropriate placements and services to meet her needs while in DCS custody. Charlette wants desperately to be placed in a safe, pennanent and loving home.
117. Charlette's mother was a prostitute, and she and her brother John frequently witnessed -46-

their mother engaging in sexual acts for money, and frequently watched pornographic films while in bed with their mother and her "clients." Charlette and her brother were removed from their mother's custody four years ago because of abuse and neglect, including sexual· abuse by their mother and her boyfriends. DCS then placed them with their grandparents, without appropriate investigation and evaluation before they were placed to ensure that their grandparents could safely care for them. Defendants also failed to provide appropriate case manager visits and monitoring of their care once they were living in their grandparents' home, and both Charlette and her brother were sexually abused by their grandfather and several of their uncles. DCS eventually removed them from their grandparents' custody and placed them - again without adequate services to ensure their safety - back with their mother, where they were abused, and removed once again. Des then placed Charlette and her brother in a series of inappropriate foster homes, where they failed to receive needed therapy and counseling to address their deteriorating emotional problems stemming from their repeated abuse.
118. DCS has failed to provide Charlette with appropriate services and placements to meet her needs. She was recently placed on medication at night to help her sleep (she suffers from recurring nightmares), but DeS has failed to provide her with appropriate counseling or therapy to address her emotional problems. Charlette's brother John exhibits.sexually aggressive behavior, often against Charlette, for which he has not received appropriate therapy and counseling services. Charlette and her brother frequently speak about the sexual acts they witnessed their mother perform as a prostitute, and the sexual abuse they suffered by their family. Currently in a regular kindergarten class, Charlette often becomes removed and deeply withdrawn. She performs poorly in school.
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119. Charlette and her brother were freed for adoption in August of 1999, when their mother's parental rights were terminated as to them. Charlette continues to languish in foster care, because Defendants have failed to take appropriate steps toward finding her a permanent home. Her current foster parent was first contacted by an adoption case manager from the Center for Adoption in Nashville several months ago, but DCS is still failing to take reasonable steps to fmd Charlette an adoptive or other permanent home. Her foster parents have informed DCS that they would consider adopting Charlette and her brother if they can receive assistance for the very expensive care and services the children require. When Charlette and her brother were first freed for adoption, their foster parents requested information regarding adoption assistance; now almost a year later, DCS has still told them nothing about it.
120. Charlette, who is African-American, has been deprived of her rights while in foster care to an appropriate placement and services, and to reasonable efforts to secure a permanent home for her, in part, because Defendants make even less effort to secure these rights and benefits for African-American children in DCS custody than they do for Caucasian children. She expects that she will eventually be uprooted again, and she wants desperately to be placed in a permanent, safe· and loving home.
121. As a result of Defendants' actions and inactions, Charlette has suffered, and continues to suffer, irreparable harm. Defendants have violated Charlette's constitutional and statutory rights by failing to protect her from harm; by failing to provide her with safe and appropriate foster care placements; by taking her into state custody and subsequently placing her into circumstances which Defendants knew or should have known would have and did render her vulnerable to danger and placed her at risk of harm and which in fact resulted in severe harm to her; by failing to
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appropriately evaluate reunifying her with her parent, and failing to monitor her safety and progress when returned home; by failing to provide her with legally required services, consistent with reasonable professional standards, necessary to prevent her from deteriorating physically, psychologically, emotionally, educationally or otherwise while in state custody; by failing to appropriately investigate her foster care placements, including placements with relatives, before placing her; by failing to implement appropriate, legally mandated plans of care and permanency plans to assure that she is cared for and placed in a permanent home, consistent with reasonable professional standards; by failing to conduct appropriate administrative and judicial reviews of her care and progress as required by law and reasonable professional standards; by failing to make
.
timely and meaningful social work contacts and failing to monitor her progress while in foster care; by .failing to provide case management, planning and supervision in accordance with reasonable professional standards; by utilizing criteria or methods of administration which have the effect of subjecting her to discrimination on the ground of her race, color or national origin, and which have the effect of substantially impairing the accomplishment of the objectives of Tennessee's child welfare system as it applies to her; and by excluding her from participation in, or denying her the benefits of, or subjecting her to discrimination under a program receiving financial assistance, on the basis of her race, color or national origin. G. TERRYG.
122. Terry G: is a seventeen-year-old girl from Cheatham County who currently lives in a Level ill facility in Davidson County. Over the past year, she has gotten pregnant, was attacked and beaten up by another teenager, and eventually lost her baby, all while in DCS custody, because Defendants have failed to ensure that the Level III facility in which DCS has placed her provides
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adequate services and supervision to maintain the safety of children who live there and to ensure an absence of violence in the facility. Terry has been in at least seven inappropriate placements since entering DeS custody approximately two years ago, because Defendants failed to provide an appropriate assessment of her needs when she entered state custody, and have failed to provide appropriate placements and services to meet her serious emotional and behavioral problems. Terry will tum 18 in December and will be discharged from Des custody without the skills necessary to live on her own, because Defendants have failed to provide legally required services to teenagers over 16, such as Terry, while they are in Des custody.
123. Terry was diagnosed at age five with attention deficit/hyperactivity disorder (ADHD). She was hospitalized at ages 12, 13 and 14 in connection with her behavioral and emotional problems. Terry was placed in DeS custody approximately two years ago as a result of increasingly uncontrollable behavior, which included numerous incidents of running away, fighting, drinking, missing school, and stealing. After failing to appropriately assess her needs and to locate a placement that met her needs, DeS first placed Terry in a Level I foster home, which disrupted in one day, and then placed her into another foster home which lasted about two months. DeS then moved her in and out of a Diagnostic and Evaluation Center and several Level III facilities, each lasting no more than a few months. DeS continued to place Terry where beds were available as opposed to where her needs could be met, and moved her into another inappropriate individual foster home which lasted only a few months. DeS then placed her in a Level III facility for several Il).onths, then moved her once again to her current Level III facility 10 months ago.
124. Terry's behavior was difficult to control when she began her current placement. She was diagnosed with bipolar disorder and was heavily medicated with multiple psycho-tropic
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prescriptions which regularly caused her to sleep most of the day. At one point, her prescriptions were dramatically altered, which caused her to act violently. During this period, Terry was regularly placed in restraints.
125. Approximately six months into her current Level III foster placement, Terry became pregnant by a teenage boy in DeS custody who was living in the same facility. During her pregnancy, Terry received no parenting classes or other mother-child or maternity services other than medical check-ups; instead she was put on a waiting list to be placed in a mother-child facility in Knoxville. Several months into her pregnancy, Terry was attacked and severely beaten up by another teenage girl in her facility and subsequently lost the baby.
126. Terry continues to receive inappropriate and inadequate access to education. While she was heavily medicated, she routinely slept through school hours. Her frequent movement from one inappropriate placement to another has greatly impeded her educational development. Although Terry is a special needs/disabled child due to her emotional and behavioral problems, DeS has failed to seek and secure educational and other support services required by law to allow her to participate fully in the child welfare system.
127. DeS has grossly failed to provide Terry with legally mandated and necessary skills training to enable her to live on her own when she turns 18 and is discharged from DeS custody. She receives no such training at her current Level III placement. This failure by DeS, made even worse by Terry's behavioral and emotional problems, leaves her ill-prepared to live independently. DeS will thus place her in considerable danger when she is discharged from custody in December.
128. DeS has also failed to provide appropriate and required family support services to allow Terry to maintain critical family ties with her mother and to address the issues that led to her
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placement in custody. Other than an emergency session at her mother's request upon learning of Terry's recent pregnancy, Terry has received no family therapy services with her mother for at least ten months, despite numerous requests by Terry and her mother for these services. The loss of her pregnancy, her ongoing emotional problems and her upcoming discharge from custody have made this service failure by DeS particularly damaging.
129. As a result of Defendants' actions and inactions, Terry has, and continues to be, irreparably harmed by Defendants, and will be placed in great danger and at risk of harm when she is discharged from DeS custody when she turns eighteen.
130. Defendants have violated Terry's constitutional and statutory rights by failing to protect her from harm; by failing to provide her with safe, secure and appropriate foster care placements, as required by law and reasonable professional standards; by failing to provide social services in connection with her pregnancy and its loss; by failing to provide independent or transitional living services to prepare her to live on her own \vhen she is discharged from state custody; by failing to provide her with legally required services, consistent with reasonable professional standards, necessary to prevent her from deteriorating physically, psychologically, emotionally, educationally or otherwise while in state custody; by failing to provide her, as a child with disabilities, with the least restrictive placement and services appropriate for her particular needs as .required by law and reasonable professional standards; and by failing to monitor her progress while in foster care; and by failing to conduct appropriate administrative and judicial reviews of her care and progress, all of which are required by law and rea.sonable professional standards.
FACTUAL ALLEGATIONS REGARDING SYSTEMIC DEFICIENCIES 13l. The experiences and presently unmet needs of the named Plaintiffs are merely
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examples of the Defendants' systematic failure to fulfill their legal responsibilities to children in DCS custody and are representative of the Defendants' failures to comply with the law with respect to the Plaintiff children. They illustrate Defendants' long-standing pattern and practice of illegal actions and inactions, and their deliberate indifference and failure to exercise professional judgment regarding, the health, safety and welfare of the Plaintiff children. Any previous attempts Defendants have made to remedy these systemic failings have been superficial, insufficient and ineffective. Children are still not receiving services to which they are legally entitled and that meet applicable legal and reasonable professional standards.
132. The grave conditions faced by children in DCS custody and Defendants' systemic failings have been extensively and repeatedly documented for over a decade. Efforts dating back to the 1980's to improve DCS's predecessor agencies resulted in the 1991 "Foster Care Task Force" as well as the "Children's Plan." Numerous recommendations and initiatives created by these efforts have never been implemented, and many subsequent reports through the present have repeatedly identified the same problems. For example, the report prepared by the Office of Research of the Tennessee Comptroller of the Treasury and released in August of 1999 (the "Comptroller's Report") concluded that numerous fundamental problems continue to prevent Defendants from meeting their obligations to children in DCS custody.
133. Additionally, the Tennessee Commission on Children and Youth (TCCY) annually evaluates services provided to children in state custody. Since 1994, TCCY's Children's Program Outcome Review Team (C-PORT), has annually conducted evaluations of children in state custody with a statistically valid sample of over 500 cases. These C-PORT Reports have repeatedly identified uncorrected systemic deficiencies at DCS.
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134. An annual Performance Audit of DCS, conducted through the Office of the State
Comptroller, evaluates the financial effectiveness in DCS's delivery and management of child welfare services. The Performance Audits have also highlighted systemic deficiencies at DCS.
135. Finally, over the last several years, local media state-wide have repeatedly reported on the grave systemic problems at DCS. For example, in November of 1998, the Nashville Tennessean published a series of articles reporting that children and parents across the state wait too long for services, that turnover rates for caseworkers are unmanageably high, and finding "a dispassionate bureaucracy more concerned with paperwork than with children's futures and a judiciary that either doesn't fully understand its watchdog role in the process or is too bogged down with other matters to keep a close eye on the progress of children through the system." A December, 1998 article in the Memphis Commercial Appeal found that children languish in care, and that state officials routinely do not know where children in their custody are placed, the condition of children in their custody or whether the child welfare programs they administer are effective. An article in the Kingsport Times-News in March of 1999 reported that Juvenile Court officers stated that "the state runs a 'bed-driven' system that sticks children wherever there is a bed, regardless of the appropriateness, rather than using a more costly needs-based system." An article in the Knoxville News Sentinel in September of 1999 also reported on Defendants' harmful practice of placing children based on available beds rather than the child's needs, and further found that children linger in temporary placements sometimes for as long as 12 to 14 months and that there are repeated instances of vulnerable children being housed with dangerous children charged with delinquent offenses.
136. Although Defendants have long been aware of the problems set forth herein, they have -54-

failed and refused to exercise their authority to ensure that identified problems are remedied. A. Assessments and Case Plans
137. In order to provide a child with an appropriate placement and adequate services, DCS is required by law to complete an assessment and case plan for every child in care. The case plan (also known as a "permanency plan" and a "plan of care") must be developed within 30 days of the child's placement, and must be approved by a judge within 60 days of the child's placement and at least every six months thereafter. This plan is required to not only state the child's permanency planning goal, but also to provide all of the social, emotional, and physical history of the child, and detail a plan for providing services and for achieving the permanency planning goal.
138. Thorough assessments and adequate case plans are essential to meet the requirements of federal law, to ensure the provision of appropriate reviews for children and to minimize the length of stay in foster care. According to TCCY, an adequate assessment should generally include a complete collection of pertinent information pertaining to a child and family, enabling the case manager to create an appropriate long-term view for services and to design a permanency plan which meets the child's needs. Initial assessments are also supposed to determine what other more specialized assessments may be required for a particular child.
139. DCS fails to provide adequate assessments of children entering care. As a result, children are being denied appropriate and essential treatment, and their time in custody is being unnecessarily prolonged.
140. According to the 1998 annual C-PORT Report i~sued by TCCY, the number of children whose assessments were inadequate nearly doubled from the previous year to 27%. This was the lowest level of performance ever achieved by DCS on this measure in the five years the C-
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PORT Reports have been presented. Problems included incomplete or non-existent social histories; lack of psychological evaluations for children clearly in need of them; and lack of appropriate follow-up evaluations in areas such as alcohol and drug assessments, speech and language assessments, and developmental assessments.
141. As DCS does not adequately assess children entering its care, it is not surprising that the 1998 C·PORT Report stated that "the majority of Plans of CarelPermanency Plans were inadequate." The case plans reviewed failed to address child or family needs, were out of date, contained inappropriate goals, were not individualized, and at least 10% of the cases had no plan to address the needs of both the child and the family.
142. DCS's failure to provide assessments and case plans frequently results in children lingering in temporary placements (e.g., shelters, diagnostic placements). Until their case plans are completed, children remain in these placements, where they receive neither treatment nor services. Data for 1998 provided by DCS to the Office of the State Comptroller showed that almost 40% of children in temporary placements had been there beyond 30 days. Several regional resource managers interviewed for the Comptroller'S Report attributed these extended stays to delays in providing initial assessments, which are required before children can be moved to longer-term placements.
143. The 1998 C-PORT Report also found that problems with assessments are attributable to the lack of training of case managers in developing a social history and in recognizing the need for additional assessments. High caseloads and the high turnover rate and vacancy rate for DeS staff are further barriers to timely, adequate assessments.
144. DCS's failure to identify appropriate services in assessments and case plans, in -56-

violation of law and reasonable, professional standards, has often resulted in the denial of appropriate treatment and intervention along with increased stays in custody.
B. Permanency Planning for Children 145. Once a child is removed from his or her home and placed in DCS custody, DCS must initiate permanency planning. Permanency planning is the component of the case plan (the "permanency plan" or "plan of care") mandated for each child, that identifies the child's long term goal. It also encompasses the process of working towards this goal, and monitoring a child's needs, development and progress towards placement in a permanent home, and modifying the goal as necessary. If DCS decides a child should not be returned home, it must promptly determine how best to secure an alternative permanent home for the child. The home county case manager is responsible for developing the permanency plan for each child in DCS custody. 146. Permanency planning in Tennessee is routinely inadequate and in violation of federally mandated timetables and reasonable professional standards. The 1998 C-PORT Report determined that the majority of the permanency plans for the cases reviewed \vere inadequate. 147. Long after it is clear that a child cannot or should not be returned home, DCS still fails to set a goal of adoption, despite federally mandated timetables designed to enhance permanency planning. Children routinely remain in DCS custody for more than two or three years, or more, before adoption is even considered and their goal is finally changed. 148. While waiting for their goals to be changed, thousands of children in DCS custody grow too old to be strong candidates for adoption, and too often lose much of their childhood in foster care. As concluded in the 1998 C-PORT Report, "children are remaining in custody too long due to delays: in release from custody, in termination of parental rights, and in the adoption
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process." In fact, the number of cases in the annual C-PORT studies where children were found to be in custody too long - a full 29% of all children in DCS custody in 1998 - has progressively increased over the past five years.
C. Out-or-Home Placements 149. A severe, ongoing lack of sufficient and appropriate foster care placements in Tennessee has resulted in unlawful, dangerous and harmful conditions for children in DCS custody. According to the 1998 C-PORT Report, DCS foster children experience an average of 3.4 placements, and 23% - over 2,000 children - experience 10 or more placements. While their needs go unmet, and their emotional and developmental well-being is damaged by multiple inappropriate placements, children routinely face additional deprivations - including further abuse and neglect - while in foster care, and the time they spend in custody is unnecessarily and unlawfully prolonged. As found in the 1998 C-PORT Report, over 36% of foster children spent more than mo years in foster care, and over 17% spent four years or more in foster care. The actual percentage ofjoster children in DCS custody for over two and four years is significantly higher, because the state's estimate includes delinquent children who, as found by the state, spend less time in custody. Many children have spent all or most of their childhoods in state foster care custody. 150. There is a fundamental lack of sufficient numbers and types of placements necessary to meet the needs of foster children in Tennessee. According to the Comptroller's Report, in a survey conducted by TCCY in late 1998, 73% of juvenile court judges reported that a lack of placements usually, if not always, prevents the securing of an appropriate placement that meets the child's needs. As found in the Comptroller's Report, field staff place children in "any available 'slot'" and judges expressed concern over "DeS workers'giv[ing] kids what is available and not
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necessarily what they need.'" 151. Children are routinely placed in emergency placements such as shelters for up to four
or six months at a time and sometimes up to 12 or 14 months, while they remain on "waiting lists" for needed placements and services. Compounding this problem, as found in the Comptroller's Report, across the state DCS "lack[s] enough shelter beds." Other emergency placements including diagnostic and evaluation centers, observation and assessment centers, temporary holding facilities, mental health facilities and emergency foster homes - are also routinely stretched beyond their capacity. With no available placements, children taken into DCS custody are often held in state offices during the day in the hopes that an emergency slot will open up. In at least one office used by DCS workers, children have slept overnight on cots while they await an initial, or another emergency placement.
152. According to the Comptroller's Report, as of April of 1999, almost 400 children were on waiting lists for needed placements and services (excluding the significant foster care population in Davidson and Hamilton counties, neither of which responded to the Office of Research's requests for updated information), and at one point between September of 1998 and March of 1999, almost 500 children had been in emergency placements for more than 30 days. In addition to experiencing what the Comptroller's Report refers to as "dead time" while they await placement, these children face significant deprivations. As concluded in the Comptroller's Report, "[d]angerous children with a history of violence are placed with non-dangerous children in temporary placements, putting previously victimized children at further risk." Moreover, "a child who has been sexually abused may be put in the same temporary placement as a juvenile delinquent charged with sexual assault" which, as one judge was quoted as saying in the Comptroller's Report, is "like mixing predators
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with prey." 153. Conditions in out-of-home placements routinely do not improve fo~ children who get
beyond an emergency placement. According to the 1998 C-PORT Report, a significant number of children had been sexually or physically abused in their placements. There is a grave shortage of therapeutic and more restrictive foster placements (particularly Levels II and III), and children are often placed within lower levels of care than they require, endangering their own safety and development and placing other foster children in the home or facility at risk of harm. Case managers routinely fail to visit children in foster care placements as required by law, which hampers appropriate planning, allows their deterioration to go unnoticed and untreated, and allows threats to their safety to remain undetected.
154. Overworked and overburdened case managers often do not take required steps to ensure that children in foster care are safe. Since at least 1992, state reports have documented the failure of DCS case managers to make the required monthly face-to-face contact with children in foster care. Routinely, case managers fail to visit children and foster homes for which they are responsible for months and even years at a time. Without this contact it is very difficult for case managers to accurately assess the child's safety, situation and needs. A 1998 performance audit of case files found little evidence of contact between case managers and those they are supposed to serve.
155. Additionally, DCS routinely fails to adequately investigate the appropriateness of foster homes and foster parents before placing children with them, and fails to adequately monitor and investigate the safety and care provided in foster homes. DCS often places children with relatives without adequately investigating the appropriateness of the home or the relatives' ability to care for
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the children, and fails to adequately monitor children once they are placed with relatives. The results of these failings can be severe: children are abused and neglected while in foster homes or with relatives, and their needs go unmet.
156. Residential placements often fail to provide adequate training and supervision to ensure the safety of and an absence of violence for children placed in such facilities. As a result, children are often harmed by other children or by staff. Moreover, incidents are often unreported or inadequately reported, so corrective action is not possible.
157. There are an alarming number of teenage foster children in Tennessee. According to the 1998 C-PORT Report, approximately 45% of all foster children - over 4,000 children - are age 13 and older. As found in the Comptroller's Report, these children experience the greatest number of multiple placements, and face the most difficult prospects for adoption and permanency. Additionally, teenagers in DCS custody, who are predominantly placed in group homes or other congregate settings, too often face physical and sexual abuse while in custody. Most nmaway children - 450 children according to the 1998 C-PORT Report - flee group homes; upon information and belief, most of these children are teenagers.
158. DCS often fails to provide children who have disabilities - physical, mental, emotional or otherwise - with the least restrictive placement necessary to meet their special needs. Additionally, DCS often fails to provide required supports and services for these children that are necessary to allow them to participate fully in the child welfare system. Too many disabled children in DCS custody are deprived of the opportunity to achieve their potential.
159. DCS has failed to recruit and retain a sufficient number of adequate foster families. DCS routinely fails to provide adequate training to foster parents, especially regarding how to
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handle children with very serious behavioral and emotional problems, and DeS often inappropriately places children who require a higher level of care than the foster parents can provide. Defendants also routinely fail to provide on-going support services for foster parents, many of whom go long periods - many months or up to a year or more - without ever seeing or hearing from a case manager. Requests by foster parents for assistance routinely go ignored or unaddressed. As a result, foster parents routinely suffer "burn out" and withdraw from the system.
160. In addition to poor pre-placement and on-going support, inadequate compensation impedes both the recruitment and retention of foster families in Tennessee. The rates paid to foster parents to house, clothe and feed the children in their care are significantly below U.S. Department of Agriculture (USDA) figures concerning the cost of caring for a child in Tennessee with the result that children in state custody have less money available for basic necessities, like food and clothing, than the federal government has determined is necessary.
D. Services to Children in Foster Care 161. DeS fails to provide children with legally required services while in foster care, including providing access to education, services to enable children to return home or to have visits with siblings and other family members while in DeS custody, services to be freed for adoption and placed in permanent homes, and services to live independently once they are discharged from Defendants' custody at age eighteen. Educational services 162. The education available to children in Des custody is routinely inadequate. DeS, directly and through the contract agencies, is legally required to ensure that all children in foster care receive access to an appropriate education th~t meets their individual needs and to provide all
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children in foster care with access to appropriate educational and vocational services. DCS is failing to meet these obligations.
163. Children in DCS custody routinely experience multiple placements, so they are perpetually changing schools, often causing them to repeat grades. Behavior and emotional problems suffered by children in DCS custody frequently impede educational development, and DCS fails to provide the therapeutic and educational services to address these needs so that children can benefit from the education that is offered. DCS often fails to even notify local educational authorities of the presence of a child in its custody for placement in a local school district.
164. Children in emergency placements, such as shelters, frequently receive inadequate schooling in single "classrooms" with one or two teachers overseeing large numbers of children, despite wide variations in age, educational development and ability among the children. In some group homes, "school" involves little more than three hours in the morning and afternoon doing crossword puzzles, with a lunch recess in between. "Teachers" are too often little more than babysitters.
165. The educational needs of children with disabilities are even more likely to go unmet by Defendants. These children are legally entitled to access to special education services, but frequently do not receive them. DCS fails to identify many children in its custody who are in need of special education services, and fails to take any action to ensure that children who have been identified receive access to appropriate educational services. Reunification, visitation and family support services
166. DCS to~ often fails to take reasonable steps to evaluate whether reunification with the family is an appropriate goal, and foster children and their birth parents are not provided with
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services necessary to facilitate the prompt reunification of their families whenever safe and appropriate, as required by law and reasonable professional standards. Additionally, Defendants routinely fail to provide child-sibling visits and other family support services for children in DCS custody, which are also required by law and reasonable professional standards.
167. DCS often fails to provide psychological evaluations and counseling to parents in order to facilitate a safe reunification. DCS and the courts frequently require parents to undergo evaluations and subsequent counseling before a child can be returned home. Although DCS is obligated to provide evaluations and counseling in such circumstances, DCS refuses to provide them from its own resources and relies exclusively on funding from TennCare. However, TennCare frequently refuses to pay for parental evaluations and counseling, on the grounds that they are not medically necessary. This leaves children trapped within DCS' s deficiencies and stranded in foster care for unnecessarily long periods, as they cannot be returned home until the parents are evaluated and receive counseling, while their parents do not have the independent means to pay for these services themselves.
168. Additionally, because DCS does not appropriately include parents in planning for their children's permanent discharge from foster care, parents frequently do not know or understand what they must do to secure their children's return, prolonging children's stays in foster care and hindering reunification.
169. Another systemic problem, which creates a further barrier to reunification, is the lack ofvisitation between parents and children with a goal of return home. Children are often placed at great distance from their parents and siblings. As found in the Comptro)]er's Report, children are routinely placed out of their county and 35% are placed out of their region, "making it more difficult
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for the home county case manager to stay in touch with the child, and for parents to participate in visitation, counseling and reunification efforts" and "undermin[ing] treatment efforts and outcomes."
170. In cases where parents do not have cars or access to them to facilitate visitation and reunification, Des case managers are responsible for providing transportation. However, transportation services are frequently inadequate and visits often do not take place. The lack of transportation in rural counties is particularly severe and has an impact on not only visitation, but on other reunification services as well, because the closest service providers are frequently located across county lines.
171. Reunifications are too often attempted without appropriate services or supervision, and children suffer additional abuse and neglect and must again be removed from their parents' home.
172. Additionally, DeS often fails to provide children in DeS custody with visits with their siblings or other family members, as appropriate and required by law and reasonable professional standards. Inadequate resources, overburdened case managers, the placement of children out of region and inappropriate planning combine to deprive children of important family ties. Adoption and other permanent placement services
173. Once DeS determines that a child's return home is not safe and in the child's best interests, Des is required to promptly determine how best to secure a permanent home, which is usually accomplished through adoption. However, numerous systemic deficiencies in the adoption process prevent or delay children from being adopted, and unnecessarily and unlawfully extend children's time in state foster care custody.
174. DeS fails to timely change children's permanency plans to include a goal of adoption. -65-

For example, one "Illustrative Case" in the 1998 C-PORT Report by TCCY revealed a plan of care that "had not been updated to address ... the current goal of adoption;" in another case where "adoption was the stated goal of the Plan of Care but no one was working toward this goal and the child wanted a family," TCCY found that "[p]lans for adoption should have been implemented years ago." These severe problems are routine.
175. Federal law requires DCS to file a petition to terminate parental rights, absent certain exceptions, for children who have been in foster care for 15 of the most recent 22 months. In September 1998, DCS reported to the Legislature that more than 6,000 children could fall within this category. Of these children, the Comptroller's Report includes the state's estimate that DeS should have - but has not - filed a petition to terminate parental rights for at least 1,100 children for whom reunification efforts have failed. In too many cases Defendants are failing to comply with federally mandated timetables. Termination is routinely not pursued in a timely manner, due to case manager overload, turnover, inexperience, and insufficient legal staff to process terminations.
176. The process does not improve for those children for whom parental rights have been terminated. Although most adoptions are by foster parents who are well-known to DeS, too often DeS fails to complete the work necessary to complete the adoption. Unreasonable and unlawful delays during the process prevent concrete steps toward finalization from even beginning. Once a child has been freed for adoption, her case is supposed to be transferred to an adoption unit (or the equivalent), however, six months to a year routinely pass before case files are physically transferred. During this time, children do not receive the mandatory case visits, because they are the responsibility of neither their old or new caseworkers. Even once the case transfer has occurred, another year, and too often many years, pass before any concrete efforts towards adoption are taken.
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177. DCS has failed to develop a sufficient adoptive home recruitment program so foster children for whom adoption is necessary have a chance to be placed in a permanent family. According to the Comptroller's Report, with over 800 children in DCS custody awaiting adoption, . "the critical need for adoptive parents statewide exists." Despite a surge in demand for adoptive parents, as reported in the Comptroller's Report, total adoptive placements in fiscal year 1998 decreased from fiscal year 1997. The shortage of adoptive homes will only intensify as DCS currently rushes to file termination petitions for over 800 children in a desperate attempt to diminish its gross non-compliance with federal mandates.
178. Despite this ever growing need for adoptive parents, the system for adoption services has become so overloaded that the statewide "list" for prospective adoptive parents has been closed to new parents who would like to adopt.
179. In addition, because of the state's failure to seek and secure appropriate adoptive homes for children needing permanent families, foster parents who cannot provide an appropriate permanent family for a child are sometimes asked to become adoptive parents and are approved for adoption by DCS solely because it has no other options. In other instances, because DCS does not act within a reasonable period of time to make and implement the decision about whether children should be adopted, children form serious emotional attachments to foster parents who are not appropriate adoptive parents, or who are unwilling to adopt, creating situations in which children must be wrenched out of long-term relationships or left to grow up in the impermanence of state foster care custody.
180. Turnover and excessively high case loads for adoption unit workers make timely efforts to proceed towards adoption virtually impossible. Vacancies are not being filled, and case
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loads are routinely being "absorbed" by existing, already overburdened staff that cannot possibly provide required services. Training is inadequate, and persistently high turnover has resulted in largely inexperienced adoption workers.
181. Additional systemic deficiencies in the process after parents' rights have been tenninated further delay adoptions, often up to several years. For example, a single state employee who staffs the "Putative Father Registry" in Nashville for the entire state must search the state's records for each child prior to any adoption, which often results in significant delays. In another example, pervasive problems in the finger printing process - also required prior to adoption finalization - frequently adds inordinate delays. In yet another example, DCS frequently fails to ensure, within a reasonable period, that the required, updated home study of the adoptive parents is conducted. Independent Living services
182. Teenagers make up approximately 45% of foster children in Tennessee. Foster children age 16 and older who cannot return home or be adopted are legally entitled to services designed to prepare them to live on their own upon their discharge from the foster care system at age eighteen. Children under the care of DCS, however, receive inadequate or no preparation for independent living, although DCS is aware that the coping and survival skills of many older foster children are seriously deficient and that they are not prepared to live on their own when they are discharged from state custody.
183. Most areas of the state have no programs specifically for independent living training, and those few programs which do exist have few openings. DCS considers that a child is receiving independent living training if the child simply is attending high school. Young people are regularly
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discharged from the foster care system lacking the education, training and life skills necessary to live independently.
184. The hundreds of "runaway" teens are even more likely to fail at supporting themselves. DeS does not make any effort to locate these teens; instead these children are abandoned to unknown fates. Many of them end up in the criminal justice system, or in lives of poverty and dependency as adults.
185. Pregnant children in foster care often fail to receive maternity services to help them prepare to become adequate parents when their child is born, leaving them grossly unprepared when they give birth and when they are discharged from state custody. DeS lacks sufficient placements for new mothers and their children. Too often, children born of foster children while in Des custody remain in foster care after the mother is discharged from custody.
186. Additionally, foster children with disabilities, including serious mental health or other behavioral problems, are in particular danger when they "age out" of the system. DeS has established no process for ensuring that these children in state custody will be provided with necessary and essential treatment and supportive services in adulthood, or for arranging any transition process.
E. Administrative and Judicial Reviews 187. Defendants are legally required to provide children in DeS custody with administrative or judicial reviews of their status at least every six months, a minim~m of an annual judicial review of the child's foster care plan, and no later than 18 months after the original placement a special court review to determine the permanent plan for the child. These reviews and hearings are to ensure that foster children's cases are periodically overseen by a disinterested person and that the
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children's progress toward achieving permanency is monitored so that children remain in foster care for as short a period as possible. However, hearings and reviews routinely do not proceed in the time and in the manner required by law.
188. DCS routinely fails to notify birth parents, foster parents or Court Appointed Special Advocate (CASA) volunteers, of scheduled administrative and judicial reviews. Due to inadequate legal staffing, which often makes it impossible for DCS attorneys to appear at hearings, and inadequate case manager resources, which results in out-of-date and incomplete case files, DCS often postpones judicial hearings for weeks and even months at a time.
F. Case Manager Case Loads, Turnover, Training and Supervision 189. The Comptroller'S Report concluded that "[h]igh staff turnover and case loads, inadequately trained staff, and under-staffing continue to impede" the provision of needed services to children in the child welfare system. 190. Individual caseloads of over 40 children, well above reasonable professional standards, are not unusual. In information provided to the State Comptroller in 1999, DCS has admitted to case loads as high as 51 cases per case manager. Case loads have risen in at least one region to as high as 80, when vacancies in case manager positions are taken into account. 191. For the last several years, the turnover among case managers has been, and continues to be, unrelenting. According to DCS's own 1998 data, 17% of case-carrying worker positions were vacant. In one DCS office alone, the turnover rate in one year was one hundred percent. The socalled "vacant case loads" caused by high turnover are at best "absorbed" in name only by other already over-extended staff. Many children have more than three different newly-assigned case managers during a single year in foster care as the result of resignations or reassignments.
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192. The front-line staff are increasingly young and inexperienced. In September of 1998, DCS reported that 23% of caseworkers had less than one year's experience.
193. Training is inadequate. New workers are trained only for approximately three weeks, which is insufficient, according to the Comptroller'S Report and reasonable professional standards. In-service training is also deficient, and workers are unable to take advantage of the little training that does exist due to the demands of high caseloads. A report in September 1998 in connection with the EPSDT Consent Decree determined that additional training is required to prepare case managers to adequately assess a child's and family'S needs and to develop a treatment plan for the child. The Executive Director of TCCY, in presenting the 1998 C-PORT data to a legislative committee, stated that the poor results illustrated a serious need for more and better training on assessment, permanency planning, and clarification of the roles of the various overlapping case managers.
194. The qualifications required for case managers at Des are inadequate. Applicants for DeS case manager positions are required to have only a bachelor's degree in any subject and are not properly assessed by educational background or experience for the position.
195. In addition, case manager supervisors often lack experience andlor training in child welfare, and therefore cannot adequately supervise the case managers. They also supervise too many case managers and too many programs, and due to the turnover, they are increasingly supervising new case managers who lack any practical experience. Overload also prevents supervisors from performing their jobs adequately. Case manager supervision often consists solely of checking written records in order to determine jf the case manager has filled out the proper paperwork.
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196. DCS management responds with at best indifference, if not hostility, to case managers or supervisors who have complaints or express concerns about DCS policy, casework and personnel issues. Additionally, fear of retaliation by DCS often deters foster parents, pre-adoptive parents and others who provide services to children in DCS custody from advocating for the needs of individual children or complaining when needed services are not provided.
197. As a result of these converging problems, case managers are unable to provide professional child welfare services for the children entitled to receive them. Case managers do not have time to visit children in their foster homes or to procure services necessary to support the children's behavioral and emotional needs. Moreover, many of these critical services are simply unavailable, which further impedes case managers' ability to function effectively. The role confusion between the home county case managers and residential case managers, and the resulting service failures, are so severe that TeCY has recommended abolishing the dual case manager system and replacing it with a single case manager.
198. The systemic problems at the case manager level also contribute to paralyzing deficiencies elsewhere in the DeS system. For example, in order for a DeS attorney to initiate a proceeding to terminate parental rights, the case file must first be reviewed and summarized by the caseworker before being sent to a Des attorney. Overworked case managers cannot provide these summaries in a timely manner (if they are provided at all), and inexperience, inadequate training and supervision render most ill-equipped to prepare a useful summary (e.g., interpreting DRS log. entries, assessing evidence of neglect or abandonment). Desperately needed and legally required services often grind to a virtual halt.
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G. Management Information System 199. Federal law requires every state to maintain a computer database to track individual children in foster care and to coordinate children and available placements and services that meet their needs. The computer system must also be able to generate reports so that the agency can analyze the child welfare system as a whole. DCS lacks an adequate management information system ("MIS") to provide accurate data on children in DCS custody. According to the Comptroller's Report, this lack of data "impedes efficient and effective treatment for children in DCS custody." 200. The lack of adequate information about children in state custody, and the desperate
need for an improved rvns, have been problems in the delivery of services to children in Tennessee
since the early 1980's, and are well-known to DCS and its predecessor agency. 201. DCS currently utilizes the Client Operation and Review System ("CORS") to track the
profiles of children in state custody, including their placement history, family information, and permanency plan. Among its many proposed functions, CORS is supposed to match children with facilities providing care, monitor the status of children and identify those who need to be reassigned to other facilities. However, as stated in the Comptroller's June 1999 Financial Audit (" 1999 Financial Audit"), four separate reports between 1994 and 1998 found that CORS has major problems in ensuring basic data integrity and user accountability.
202. DCS is currently unable to provide basic critical information on the functioning of the system it is charged with operating, including: the actual location of each child in foster care and their prior placements; the case plan and permanency goal for each child; and the number of children in custody who are on waiting lists for services and the type of placements or services they require.
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203. According to the 1999 Financial Audit, even if the system operated as it was intended,"eORS does not maintain sufficient information for proper foster care semiannual reporting, as required by the federal Department of Health and Human Services as of March 1998." Rather than gather the necessary foster care data required, DeS has chosen to take a penalty each time the report is submitted, resulting in penalties from March 1998 and September 1998 alone totaling approximately $165,370.
204. DeS Management has stated that many of the problems with the eORS system will be remedied when it is replaced by a new database called "TnKids." TnKids, like so many other actions taken over the years in response to obvious problems, shows little promise of actual implementation, let alone solving the fundamental deficiencies in the eaRS system.
205. While the new system is purportedly designed to provide better data management than CaRS, it will not provide a meaningful improvement over the current system. Assuming TnKids is eventually running, the old data now in CaRS will be transferred in its entirety to the new system, along with all of the data problems which exist in the current system.
H. Financial Management 206. Financial mismanagement in the administration of child welfare services has occurred while funding for child welfare services has decreased over the past five years. Repeated and ongoing financial mismanagement has led to the loss of millions of dollars available for child welfare services in Tennessee - documented by DeS's own internal audits - that are unaccounted-for, squandered, or simply unused (in the case of available federal monies). According to the Tennessee Budget Project, funding for children committed to the state's custody was approximately $167.5 million in 1999, approximately $82 million less than the state's spending of
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$250 million in 1994. 207. The financial mismanagement at DCS has been, and continues to be, so severe that the
1999 Financial Audit concluded: Based on the number of repeated findings and the increase in new findings, it appears that the Commissioner [defendant Hattaway] ... and others have not recognized the seriousness of all the findings.
This mismanagement has diverted millions of dollars away from providing desperately needed child welfare services to the Plaintiff children.
208. Adding to the mismanagement of funds, Defendants have failed to utilize huge sums of otherwise available monies for children in DCS custody. Under Title IV-E of the Social Security Act, states are entitled to receive federal funding towards the board rate for children in foster care whose parents live below the poverty line. Defendants do not claim the Title IV-E funding for which Tennessee is entitled. At least 65% of Tennessee families with children in foster care have incomes below the poverty line, yet Tennessee seeks Title IV-E funding for only approximately 25% of the children in foster care.
I. Discriminatorv Effect in the Administration of Child "Welfare Services on African-American Foster Children in DCS Custodv 209. Defendants utilize criteria or methods of administering child welfare services which have the effect of sUbjecting children in the African-American Subclass to discrimination on the basis of race, color or national origin, and the effect of defeating or substantially impairing the accomplishme.p.t of the obj ectives of the child welfare services provided by Defendants to foster children, with respect to the children in the African-American Subclass. 210. Defendants make even less effort to secure appropriate placements and services, and
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to make reasonable efforts to secure a permanent home for African-American children in state
custody, than they do for Caucasian children.
211. Children in the African-American Subclass receive even fewer and poorer quality child
welfare services than Caucasian children. As found in the Comptroller's Report, "[a]nalysis of 1997
;
C-PORT data indicates that upon entering custody, African-American children are not as likely to
receive adequate services crucial to achieving permanency and improving family participation."
The Comptroller's Report found, on at least four specific measures of service adequacy, "a
discrepancy in the way the DCS system facilitates the participation of minority children in decision-
making compared to the system's efforts toward white children and families" and that "the DCS
system is not as accomplished at facilitating progress or overall adequacy with minority children."
212. The specific measures of inadequacy supporting these findings of discriminatory effect
in the Comptroller's Report included: inadequate child participation (nine percent for African-
AmericanlBiracial children versus four percent for Caucasian children); inadequate family
participation (20% versus 12%, respectively); inadequate family progress (37% versus 30%,
respectively); and overall service inadequacy (52% versus 43%, respectively). On these factors, the
Comptroller's Report concluded:
The difference in inadequacy between minoritv and Caucasian children on these four measures is statisticallv significant. This indicates that it is unlikely that differences between minority and Caucasian children are based on chance and that race is a factor in whether or not children receive adequate services. This does not mean that race is the cause [emphasis in original], but there is enough statistical difference in these four areas to suggest it is a factor and that more study is needed.
(Emphasis added).
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213. African-American children also spend a disproportionately longer time in foster care than Caucasian children. The Comptroller's Report states that "Tennessee officials indicate that finding permanency through foster and adoptive homes for African-American children is more difficult than for other groups" and that "[t]his may result in longer custody stays for AfricanAmericans." For example, according to DCS statistics, while the percentage of all foster children statewide who had been in custody for four years or longer was 17%, the percentage of such children was 29% in Shelby County where African-American children comprised over 88% of all foster children.
214. Defendants' criteria or methods of administering adoption and permanency services also have a discriminatory effect on African-American foster children. According to the Comptroller's Report, in 1997-1998 DCS placed 104 African-American children in adoptive homes or 29.5% of all children placed in adoptive homes, yet 41 % of all foster children for that year were African-American. In contrast, 220 Caucasian children \vere placed for adoption, comprising 70.5% of the total number of adoptions, while 52% of all foster children were Caucasian. While DCS does not publicly provide a breakdown by race of the estimated 800 children in 1998 for whom parental rights had been terminated and were awaiting adoption, the Comptroller's Report states that "many ... are African-American."
CAUSES OF ACTION First Cause of Action: Substantive Due Process 215. The foregoing actions and inactions of the Defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to the constitutional rights of children in the Class. As a result, children in
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the Class are being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment of the United States Constitution. These rights include, but are not limited to: the right to protection from harm; the right not to be harmed while in state custody; the right not to be deprived of their liberty unnecessarily by retention in state custody; the right to be placed in the least restrictive, most appropriate, family-like setting while in state custody; the right to treatment consistent with the purpose of the state's assumption of custody; the right to receive care, treatment and services consistent with accepted, reasonable professional judgment; and the right to protection from state-created dangers, including children's right not to be removed from their homes, committed to state custody, and subsequently placed out of custody and into circumstances, which are known or should be known to Defendants, and which render children vulnerable to danger and place them at risk of harm.
Second Cause of Action: Procedural Due Process 216. The foregoing actions and inactions of the Defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to the constitutional procedural due process rights of children in the Class. As a result, children in the Class are being deprived of federal-created and state-created liberty or property rights without due process of law. The federal-law entitlements to which children have a constitutionally protected interest arise from the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997,42 U.S.C. §§ 620-27, 670-679a, and regulations promulgated thereunder; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et~; the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 794, 794a; and Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d et~ and its implementing regulations,
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42 C.F.R § 80.3 et~ (as to the African-American Subclass only). The state law entitlements to which Plaintiff children have a protected interest under the United States Constitution include, but are not limited to, rights that require Defendants to take steps necessary to: provide family reunification services in order to facilitate the reunification of the child safely and appropriately within a timely fashion, to each family with a child in foster care, as provided by statute; ensure, in the circumstances provided by statute, that whenever a child is removed from such child's home and placed in DCS custody, that DCS seeks to place the child safely with a fit and willing relative; prohibit, in the circumstances provided by statute, the return of a child found to be dependent and neglected as a result of brutality or abuse, or as a result of severe abuse, to the custody or residence of any person who engaged in or knowingly failed to protect the child from the abuse; prepare a foster care plan/permanency plan for each child in care within 30 days of the date of foster care placement, with all required elements, and modify and monitor the plan as necessary, as required by statute and regulations; ensure, as provided by statute, that a report is prepared and submitted for each child in foster care on the progress made in achieving the goals set out in the plan, and that administrative or judicial reviews of each child's plan and the progress reports are conducted within 90 days of the date of foster care placement, and no less frequently than every six months thereafter, for so long as the child remains in foster care; ensure, as required by statute, that a permanency hearing is held within 12 months of the date of foster care placement for each child in foster care, and ensure subsequent permanency hearings are held no less frequently than every 12 months or as otherwise required, for as long as a child remains in foster care; prohibit the placement in temporary shelters of certain types of delinquent or alleged delinquent children with children adjudicated dependent and neglected, as provided by statute; restrict to 30 days the time children may spend in
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temporary placements without needed services, as provided by statute; arrange, in the circumstances provided by regulation, for appropriate visitation for sibling groups or other extended family members; provide for each child access to an appropriate education as required by the Tennessee Department of Education, statute and regulations; to assure appropriate placement for children with disabilities, DCS must provide access to appropriate educational services required by the state board of education; license, inspect, staff and supervise all placements as required by statute and regulations, and ensure each home is equipped and staffed to properly provide for the physical, social, moral, mental, educational or religious needs of all children kept therein; ensure that no greater number of children are kept at anyone time on the licensed premises than is authorized by the license, and that no child is kept in a building or place not authorized by the license; restrict the capacity of emergency shelters as provided by regulations; provide maternity services, in the circumstances provided by regulations, for each child in foster care; and, in the case of a child who has reached 16 years of age, determine and provide, in the circumstances provided by statute and regulations, the services needed to assist the child to make the transition from foster care to independent living.
Third Cause of Action: First and Ninth Amendments 217. The foregoing actions and inactions of the Defendants are inconsistent with the exercise of reasonable professional judgment and amount to a pattern, practice and custom of deliberate indifference to the constitutional rights of children in the Class. As a result, children in the Class are being deprived of their right conferred to them by the First and Ninth Amendments to the United States Constitution not to be deprived of a family relationship absent compelling reasons.
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Fourth Cause of Action: The Adoption Assistance Act 218. As a result of the foregoing actions and inactions of the Defendants, children in the Class are being deprived of the rights conferred upon them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption Assistance and Safe Families Act of 1997, and regulations promulgated thereunder. These rights include, but are not limited to, the right to timely written case plans containing mandated elements, and to the implementation and review of these plans; the right to placement in foster homes or other settings that conform to reasonable professional standards; the right to placement in the least restrictive, most family-like setting; the right to appropriate and proper care while in custody; the right to be freed for adoption in accordance with the time frames established by law; the right to planning and services to obtain a permanent placement at the earliest possible time, including documentation of the steps taken to secure permanency; the right to regular judicial and administrative reviews of their foster care placements; the right to dispositional hearings within 12 months of entering custody and periodically thereafter; the right to independent living services; and the right to receive services in a child welfare system with an information system adequate to permit the state to make fully informed decisions in each child's best interests.
Fifth Cause of Action: Federal Common Law 219. As a result of the foregoing actions and inactions of the Defendants, the children in the Class, as third party beneficiaries to the Tennessee "State Plan" contract pursuant to the Adoption Assistance Act, which also incorporates and includes provisions of state law, entered into between Defendants and the federal government, are being denied their rights under federal common law to the services and benefits that Tennessee is contractually obligated to provide to them under the
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Tennessee "State Plan." Sixth Cause of Action: Americans with Disabilities Act and the Rehabilitation Act of 1973
220. As a result of the foregoing actions and inactions of the Defendants, children in the Class who are disabled by their physical or emotional conditions are being deprived of the rights conferred upon them by the federal Americans with Disabilities Act and the federal Rehabilitation Act of 1973. These rights include but are not limited to the right to participate fully and receive the benefits of the state child welfare and foster care programs; to be placed in the least restrictive placement; and to receive any and all services necessary for them to participate fully in the state foster care program despite their handicaps or disabilities.
Seventh Cause of Action on Behalf of the African-American Subclass Onlv: Title VI 221. As a result of the foregoing actions and inactions of the Defendants, children in the
African-American Subclass are being deprived of the rights conferred upon them by Title VI of the Civil Rights Act of 1964 and regulations issued by the United States Department of Health and Human Services pursuant to Title VI These rights include but are not limited to the right not to be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance; and the right not to have any state program or activity which receives federal financial assistance utilize criteria or methods of administration which have the effect of subjecting any person to discrimination on the ground of their race, color, or national origin, or which have the effect of defeating or substantially impairing the accomplishment of the objectives of the programs with respect to individuals of a particular race, color, or national origin.
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PRAYER FOR RELIEF WHEREFORE, the Plaintiff children respectfully request that this Honorable Court: A. Assert jurisdiction over this action; B. Order that Plaintiffs may maintain this action as a class action pursuant to Rule 23 (b)(2) of the Federal Rules of Civil Procedure; C. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal Rules of Civil Procedure Defendants' failure to provide for Plaintiffs' safety and freedom from harm, consistent with the exercise of reasonable professional judgment, and failure to comply with the federal Adoption Assistance Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973, Title VI of the Civil Rights Act of 1964 and its implementing regulations (as to the AfricanAmerican Subclass only), and Plaintiffs' rights under federal common law as third party beneficiaries to Tennessee's "State Plan" contract pursuant to the Adoption Assistance Act with the federal government; D. Permanently enjoin Defendants from subjecting members of the Plaintiff Class and Mrican-American Subclass to practices that violate their rights; E. Order appropriate remedial relief to ensure Defendants' future compliance with their legal obligations to Plaintiffs; F. Award to the Plaintiffs the reasonable costs and expenses incurred in the prosecution of this action, including but not limited to reasonable fees and costs pursuant to 42 U.S.C. §§ 1988 and 1920; and G. Grant such other and further equitable relief as the court deems just, necessary and proper to protect the Plaintiff Class members from further harm by Defendants.
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DATED:

May 10, 2000 Nashville, TN

Respectfully submitted,

By:

MARCIA ROBINSON LOWRY (ML-550 IRA P. LUSTBADER (IL-0962) CHlLDREN'S RIGHTS, INC. 404 Park Avenue South, 11th Floor New York, NY 10016 (212) 683-2210

HOLLINS, WAGSTER &YARBROUGH, P.c.
By: ~'v/~~L DAVID L. YBIN (TN BPR # 3.) 5) JACQUELINE B. DIXON (TN BPR # 12054) 22nd Floor Sun Trust Center 424 Church Street Nashville, Tennessee 37219 (615) 256-6666

OF COUNSEL:

ATTORNEYS FOR PLAINTIFFS

RICHARD B. FIELDS (TN BPR #4744) 266 South Front Street Memphis, TN 38103-3803 (901) 543-4299

JOHN W. PIEROTTI (TN BPR # 7851) ROBERT LOUIS HUTTON (TN BPR # 15496) Glankler Brown, PLLC .. Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322

WADE V. DAVIES (TN: BPR# 016052) Ritchie, Fels & DilIard,P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661

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 t .. _

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRlCT OF TENNESSEE

..,....

NASHVILLE DIVISION

-------------------------------------------------------------x
BRIAN A., by his next frienci, Bobbi Jean Brooks; )

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES c., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank: Koon;

)

DENISE E., by her next friend, Linda Lloyd;

) .

.CHARLETTE F., by her next friend,

)

Juanita Veasy; and

)

TERRY G., by her next friend, Carol Oldham,

)

on their own behalf and on behalf of all others

)

similarly situated,

)

Plaintiffs,

)

)

--against--

)

)

DONALD SUNDQUIST, Governor ofthe State )

of Tennessee; and

)

GEORGE HATTAWAY, Commissioner of the

)

Tennessee Department of Children's Services

)

)

Defendants. )

--------------------------------------------------------------x

Civil Action No. 3-00-0445 Judge Campbell Magistrate Brown

SETTLEMENT AGREEMENT

TABLE OF CONTENTS Preamble.......................................................................................................4 I. Principles Of Settlement Agreement and Class Definition... ,.; .................... ,... " ... .4
A. Principles of Settlement Agreement......................................................4 B. Class Definition..............................................................................6 II. Structure of the Agency..................................................... '" ......................6 III. Reporting Abuse and Neglect............................................................. '" .......7· IV. Regional Services....................................................................... ~ ............7 V. Staff Qualifications, Training, Caseload, Supervision..........................................8 VI. Placement and Supervision of Children.......................................................... 13 VII. Planning for Children ................ ~ ................................................................21 VIll. Freeing a Child for Adoption........... :.............. ~ ...........................................27 IX.· Adoptive and Foster Parent Recruitment, Retention, and Licensing.........................29 X. Statewide Infonnation System............................... ~ ....................................31 XI. Quality Assurance........................... :......................................................~32 Xli. Supervision of Contract Agencies.................................................................35 XIII. Financial Development............................................... ~ ..............................36 XIV. Technical Assistance Committee................. ;.................................................37 XV. Monitoring...........................................................................................38 XVI. Outcome and Perfonnance Measures.................................................................40
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XVII. Modification..........................................................................................52 XVIII. Enforcement, Termination and Exit...............................................................53
A. General Principles Guiding Enforcement.............. ~...............................~53 B. Dispute Resolution.................................................................................................53 C. Termination and Exit.......................................................................55 XIX. Named Plaintiffs.......................................................•............................56 XX. Attorneys Fees and Expenses......................................................................56

3

PREAMBLE
A. The provisions of this Settlement Agreement resolve the existing disputes and issues in the case of Brian A., et al.. v. Don Sundquist, et aI., Civil Action Number 3-00-0445 (Judge CampbellfBrown), and satisfy and'resolve the claims of the named plaintiffs and the plaintiffs' class in the above-entitled case as of the date of this Settlement Agreement.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this Settlement Agreement.
C. This court shaH have continuing jurisdiction of this action to ensure compliance with the terms of this Settlement Agreement for.as long as the Settlement Agreement remains in effect.
D. Any state agency responsible for the care, protection, andlor supervision of plaintiff class members shall be bound by the provisions of this Settlement Agreement. For as long as this Settlement Agreement remains in effect, all provisions of this Settlement Agreement referring to the "Department," the "Department of Children's Services" or "DCS," upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children's Services concerning the children in the plaintiff class as defined in this Settlement Agreement, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current Tennessee Department of Children's Services under this Settlement Agreement as of the date of this Settlement Agreement.
E. This Settlement Agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF SETTLEMENT AGREEMENT AND CLASS DEFINITION
A. Principles of Settlement Agreement
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible. However, child welfare decision-makers must have the professional capacity to make determinations as to when making
4

efforts to preserve the biological family, or leaving the child with that family, is neither safe for the child nor likely to lead to an appropriate result for the child.

3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be1>laced with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.

4. Foster care should be as temporary an arrangement as possible, with its goal being to provide a permanent home for the child as quickly as possible. In making the determination about what plans and serVices will best meet this goal, the child's interests must be paramount.

5. The state has primary responsibility for the care and protectionof children who enter the foster care system. Insofar as it relies on private contractors to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.

6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.

7.

Chil~en in foster care placement should be in the least restrictive, most

family-like setting possible, and the state should make all efforts to avoid

the use of non-family settings for children, particularly young children.

8. Children in foster care placement should have stable placements that meet their needs and the services necessary to address both the traUma of foster care placement and the problems surrounding their removal from their family.

9. Children in out-of-home placement must have timely decision-making about where and with whom they will spend their childhood, and timely implementation of whatever decisions have been made.

10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.

11. The state should achieve these goals in a family environment whenever possible, separating the child from the child's parents only when necessary for the child's welfare or in the interest of the child's safety, keeping a child as close to home as possible.

5

..I.

I'

:

I

12. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other Jegal rights should be enforced and recognized.
13. Except where a particular provision of this Settlement Agreement . establishes a specific limit on the resources required to be allocated, defendants shall commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions of the Settlement Agreement.
14. All actions required for plaintiff class members under the Settlement Agreement shall be documented within the individual case file of each member of the plaintiff class. DCS shall have the ability to produce aggregate data requested by the Monitor concerning compliance with the provisions of this Settlement Agreement.
B. Class Definition
Pursuant to the terms of this Settlement Agreement, this case shall be certified as a class action and the class certified shall be dermed as follows: All foster children who are or will be in the legal custody of the Tennessee Department of Children's Services. "Foster children" shall mean all children who are or will be in .the legal custody of the Tennessee Department of Children's Services, excluding children who are or will be in the legal custody of the Department of Children's Services upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of the Department of Children's Services upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of the Department of Children's Services upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of the Department of Children's Services, shall be included in the class.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and detennine statewide standards and practices for the entire state. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that uniform forms and data collection and reporting are utilized in each region. Regions retain the right to develop and use forms and data instruments that address issues of local concern.
6

. ·
III. REPORTING ABUSE AND NEGLECT
A. DCS's system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed to ensure that all reports are investigated within established time periods.
B. All matters of abuse or neglect of foster children in DCS custody shall be investigated by the child protective services unit in the manner and within the time frame provided by law. All matters concerning abuse or neglect of foster children in DCS custody in institutional, group, residential or contract agency foster home placements shall also be referred to and reviewed by the quality assurance unit and, as appropriate, the licensing division. The purpose of this review is to detennine whether a pattern of abuse or neglect exists within the institutional, group, residential or contract agency foster home placements that contributed to the abuse or neglect; whether the facility should be closed or the contract tenninated; and what other steps are necessary to safeguard the wellbeing of the children in the facility. The quality assurance unit and, where appropriate, the licensing division, shall be responsible for taking appropriate action, including the development of a corrective action plan, monitoring the implementation of any corrective action plan, and detennining if additional monitoring is needed. This review (and any necessary investigation) shall be completed within 90 days, and DCS shall provide all necessary interim actions prior to, during and after any investigation, and shall provide reports of any investigation to the Monitor.
IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
B. Each region shall have available or shaH develop a full range of community based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
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~.

3. Adoptive families in which an adoption contract has been signed and, who prior to finalization, are in danger of disrupting without intensive homebased crisis intervention services.
V. STAFF QUALIFICATIONS, TRAINING, CASELOAD, SUPERVISION
A. All provisions of this section shall apply to all DCS Case Managers 1-4, Community Service Agency (CSA) custodial case managers, all contract agency foster care case workers and supervisors, and any other workers with corresponding responsibilities for foster children in state custody. CSA case managers will no longer have caseloads that include children in the plaintiff class, effective March 1, 2002.
B. Qualifications for case managers responsible for cases of class members shall be as follows:
.1. A Case Manager 1 shall have a bachelor's degree, with employment preference given to applicants holding a bachelor's degree in social work or a related behavioral science. No Case Manager 1 shall be promoted to Case Manager 2 until the completion of a job performance evaluation developed in consultation with the technical assistance committee (defined in Section XIV in this Settlement Agreement). Such evaluation tool shall include evaluation of their performance on the case management requirements of this Settlement Agreement. Failure to receive a satisfactory job performance evaluation at the end of one year will result in the termination of the case manager's employment.
2. A case manager 2 must have either been promoted from case manager 1, or have at least a bachelor's degree, with employment preference given to applicants holding a bachelor's degree in social work or a related behavioral science and one year experience in providing child welfare services. No Case Manager 2 shall be promoted to Case Manager 3 until the completion of a job performance evaluation developed in consultation with the technical assistance committee. Such evaluation tool shall include evaluation of their performance on the case management requirements of this Settlement Agreement. Failure to receive a satisfactory job performance evaluation at the end of six months will result in the termination of the case manager's employment.

8

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3. A Case Manager 3 must have either been promoted from Case Manager 2; or have at least a bachelor's degree, with employment preference given to applicants holding a bachelor's degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master's degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
C. In consultation with the technical assistance committee, the state shall develop and implement stipends and other incentives to support graduate work that will provide reasonable steps to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and relevant and related fields. As part of this process, the state will assess and determine whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states concerning compensation for case managers and supervisors.
D. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing training, as specified below, and after passing a skills-based competency test, the content and passing standards for which shall be developed in consultation with the technical assistance committee.
E. DCS shall have a full-time training unit headed by a chief of training with appropriate qualifications.
1. In consultation with the technical assistance committee, this unit shall have sufficient staffmg, budget funds, and other resources to assure that it can provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this Settlement Agreement, DeS policy, and reasonable professional standards.
2. This unit shall determine, on an annual basis, those DCS workers in need of retraining, as indicated by workers' failure to ensure that cases for which they are responsible meet the requirements of this Settlement Agreement, DCS policy andlor reasonable professional standards, and shall ensure that additional training is provided to them. Workers who fail ,to meet the requirements of this Settlement Agreement, DCS policy andlor reasonable professional standards, despite the provision of additional training, shall be eligible for reassignment or termination.
9

3. The details of both a pre-service and in-service training program for case managers as determined necessary shall be reviewed and developed in consultation with the technical assistance committee. All case managers shall have a minimum of 160 hours of preservice training, including instructional training and supervised field training. All case manager supervisors shall receive a minimum of 40 hours of in-service training that is directed specifically at the supervision of child welfare case workers, prior to receiving any supervisory responsibilities. All case managers shall receive a minimum of 40 hours of ongoing training each year. All case managers with supervisory responsibility shall receive a minimum of 24 hours of in-service training each year.
4. Prior to contracting with any agency, DeS will review, approve, and monitor the curriculum for caseworker pre-service and inservice training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DeS case manager, the
curriculum wiB correspond with DCS pre-service and in-service
training. As a minimum, DCS will require 80 hours of pre-service instructional training and 80 hours of pre-service supervised field training, as well as 40 hours of ongoing training each year.
F. No Case Manager 1 having responsibility for the case of any class member shall have a case load totaling more than 15 class members, or, for those workers carrying a mixed caseload, the weighted equivalent, as those weights have been determined in consultation with the technical assistance committee. No Case Manager 2 or 3 having responsibility for the case of any class member shall have a case load totaling more than 20 class members, or, for those workers carrying a mixed caseload, the weighted equivalent, as those weights have been determined in consultation with the technical assistance committee. Case managers with an adoptions caseload shall not have a caseload totaling more than 12 children in the plaintiff class. Case Manager 3's having no supervisory responsibility shall not have a caseload of more than 20. Case Manager 3's that supervise shall have a weighted caseload. Case Manager 3's supervising up to two lower level case managers shall not have caseloads totaling more than 10. A Case Manager 3 supervising three or more lower level case managers shall not have a caseload. A case manager 3 shall not supervise more than 4 case managers. Case manager 3's shall be given supervisory responsibility only in circumstances in which the caps on supervisory caseloads dictate that an additional case manager 4 would have less than a full supervisory case load. A single case manager assigned to a case shall have full responsibility for that case, including the responsibility to work with the child and the family and to visit with both for the purposes of assessing and meeting the child's and the family's
10

...•

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needs, detennining and implementing a permanency plan, supervising, supponing and assuring the stability of the child's placement and assuring a safe, adequate and well planned exit from foster care.
1. All case managers or case workers with supervisory responsibility for case managers or case workers carrying the cases of any class members (i.e., team leaders or supervisors) shall have a minimum of a master's degree in social work or related behavioral field with a child or family focus (excluding criminal justice) and at least three years experience as a case worker in child welfare; however, an additional 2 years of providing child welfare services may substitute for the master's degree (this sentence shall not apply to supervisors currently holding their positions as of the date of this Settlement Agreement or employees who are currently eligible for appointment as team leaders as of the date of this Settlement Agreement). No team leader/supervisor shall assume his or her supervisory responsibility until after completing training as specified herein, and after passing a skills-based competency test geared specifically to child welfare supervision.
2. By January 1,2002,50% of all team leaders or supervisors shall supervise no more than 7 case managers or case workers at anyone time, and shall not carry their own caseloads. By April 1, 2002, all team leaders or supervisors shall supervise no more than 7 case managers or case workers at anyone time, and shall not carry their own caseloads. By January 1,2003,50% of all team leaders or supervisors shall supervise no more than 6 case managers or case workers at anyone time, and shall not carry their own caseloads. By April 1, 2003, all team leaders or supervisors shall supervise no more than 6 case managers or case workers at anyone time, and shall not carry their own caseloads. By January 1, 2004, 50% of all team leaders or supervisors shall supervise no more than 5 case managers or case workers at anyone time, and shall not carry their nwn caseloads. By April 1, 2004, all team leaders or supervisors shall supervise no more than 5 case managers or case workers at anyone time, and shaH not carry their own caseloads. If team leaders or supervisors have any responsibilities other than the direct supervision of case-carrying case managers or case workers, their responsibilities shall be weighted, and their supervisory case load reduced to an equivalent weighted caseload.
3. Child care workers employed in any child care facility or program providing placements and services to children in foster care and their families shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
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4. All persons applying for positions with DeS or a contract agency which involve any contact with children shall be required to submit to a criminal records check and a child abuse registry screening process before beginning training or employment. No DeS or contract employee who has any contact with children shall have been convicted of a prior felony for an offense designated as a
crime against the person or have been the subject 0&., alleged
perpetrator) in any substantiated or indicated case of child abuse or neglect. An individual who has been convicted of any prior felony may not be employed by DeS or a contract agency in a position involving contact with children unless: 1) the conviction occurred at least 5 years prior to the employee's hiring; 2) the employee has not been convicted of any other criminal offense since that conviction; 3) the Des regional administrator or agency program director personally reviews the circumstances of the applicant and determines that this employee could work productively and constructively with children. An individual who has been convicted of any prior misdemeanor may not be employed by DeS or a contract agency in a position involving contact with children unless criteria ##2-3 above are satisfied. If, however, any employee for whom the above criteria has been satisfied is the subject of a criminal conviction or becomes the subject in any substantiated or indicated case of child abuse or neglect during his/her employment, the employment shall be immediately terminated. The section is not applicable to employees convicted of delinquent offenses. This provision shall not apply to foster and adoptive parents.
5. When a case manager leaves the agency, his/her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves withoutprior notice, all transfers of cases between case managers shall take place after a face-to-face meeting, including the departing and the receiving case manager's supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child's parents.
6. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall establish and maintain a pool of trained workers available to take over the caseloads of departing workers.
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III. •

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G. Case recordings and all other documentation concerning contacts or developments in the cases of class members shall be added to the case file for that child within 30 days of the case work activity or development. The case files of class members shall contain adequate documentation tracking the services provided, progress, any change in placement of the child, and authorizations which document the approval for placements, treatment and services provided to each child.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. DeS shall immediately conduct a statewide needs assessment, under the supervision and auspices of an independent expert chosen by the technical assistance committee. This needs assessment shall be completed by November 1,2001, unless the independent expert determines that additional time is necessary, which shall not exceed 60 days. The results of the needs assessment shall be publicly available 15 days after the results are provided in written form to the Monitor and the Commissioner. This needs assessment and all future needs assessments will determine the need for new andlor different placement and services resources, and where those placements and services should be located. This independent expert and the technical assistance committee may consider DeS's past and present efforts in the area of needs assessment but the independent expert shall independently determine the manner and methodology of the needs assessment to be performed. The needs assessment shall be updated annually under the supervision of the independent expert for two years, and under the supervision of the technical assistance committee thereafter. However, after the first year, upon the determination of the technical assistance committee that the independent expert should be replaced, the technical assistance committee may appoint a new independent expert for the second year. The assessments shall include a plan and timetables within which the findings of the needs assessment shall be implemented, beginning immediately after the completion of the needs assessment. DeS shall provide funding to implement the fmdings of the needs assessments. DeS will commit 4 million dollars over each of five years from the date of this Settlement Agreement. In addition, DeS will establish a 2 million dollar contingency fund for each of five years from the date of this Settlement Agreement. If the costs of the recommendations from any needs assessment exceeds the available
funding for that year, DeS will consult with the technical assistance committee to get assistance in crafting effective methods through grants, direct appropriations and other resources, to fund the recommendations. During any of five years from the date of this Settlement Agreement, DeS may choose to accelerate the spending of state appropriated funds designated for those years.

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B. A child shaH be considered to have entered foster care custody on the date that the child enters Des's physical, out-of-home custody, or on the date on which the child enters DeS's legal custody, whichever is sooner. The duration of a child's time in foster care custody shall include the entire time period after which a child entered foster care custody until formally discharged from foster care custody, including but not limited to any and all emergency, shelter or other temporary placements during which the child is in DeS's physical, out-of-home custody or legal custody.
C. All children shall be placed according to the following standards:
1. All children shall be placed within their own region or within a 75 mile radius of the home through which the child entered custody, unless the child's needs are so exceptional that they cannot be met by a family or facility within the region, or the child needs replacement and the child's pennanency goal is to be returned to his parents who at that time reside out of the region or the child is to be placed with a relative out of the region, under which circumstances the regional administrator or the team coordinator shall be specifically required to so certify in writing, based on his or her own examination of the circumstances.
2. Children shall not remain in emergency or temporary facilities, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one shelter or other emergency or temporary facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may occur for an individual placement episode for a maximum of 5 days. The exception shall only apply to runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary. As an additional exception to the multiple placement limit within any 12-month period, if a child's behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement, and the regional administrator certifies in writing that the assessment is essential for an appropriate placement, there may be a single additional placement in a primary treatment center (pTe) for up to a maximum of 15 days.
3. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DeS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court. Within 60 days of the signing of this Settlement Agreement, DCS shall inform the appropriate law enforcement offices and
14

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judicial officials in aH Tennessee counties of this policy. DeS shaH provide law enforcement and judicial officials with written instructions to immediately notify DeS of any child in DeS legal custody who has been placed in a jail, correctional or detention facility.
4. DeS shaH not place any child determined by a DeS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
5. All children shall be placed in accordance with their individual needs, taking into account the child's needs to be placed as close to home and community as possible, the need to place siblings together, and the need to place children in the least restrictive, most home-like setting.
6. SibHngs who enter placement at or near the same time shall be placed together, unless doing so is harmful to one or more of the siblings, one of the siblings has such exceptional needs that can only be met in a· specialized program or facility, or the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. If a sibling group is separated at the initial placement, the case manager shall make immediate efforts to locate or recruit a family in whose home the siblings can be reunited. These efforts will be documented and maintained in the case file.
7. No child shal1 be placed in a foster home if that placement will result in more than three foster children in that foster home, or a total of six children, including the foster family's natural andlor adopted children. No placement will result in more than 3 children under the age of 3 residing in a foster home. An exception in the best interests of the child shall apply under which the regional assistant commissioner will be allowed to make an exception on an individual basis that is documented in the child's case file. Such exception shall not be made in more than 10% of all placements made annual1y in each grand region. All such exceptions in each grand region and the detailed reasons justifying each exception shall be reported by the assistant commissioner for each grand region to the Monitor annually, from the date of this Settlement Agreement. The only other exception to these limits shall be in those instances in which the placement of a sibling group in a foster home with no other children in the home would exceed these limits.
15

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8. No child under six years of age shall be placed in a group care nonfoster family home setting, except for children with exceptional needs which cannot be met in any other type of placement and upon the express written approval by the regional administrator. Such approval shall be based on the regional administrator's certification based on a personal determination that the child's needs can only be met in that specific facility, including a description of the services available in the facility to address the individual child's needs.
9. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children without express written approval by the regional administrator. Such approval shall be based on his or her certification and specific findings that the child's needs can be met in that specific facility, including a description of the services available in the facility to address the individual child's needs and that the facility is the least restrictive placement that could meet this child's needs.
10. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility .
11. Race andlor ethnicity andlor religion shall not be the basis for a delay or denial in the placement of a child, either with regard to matching the child with a foster or adoptive family or with regard to placing a child in a group facility. Race andlor ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family. DCS shall not contract and shall immediately cease contracting with any program or private agency that gives preference in its placement practices by race, ethnicity, or religion.
12. DCS shall only contract for placements or services with licensed contractors or subcontractors.
D. All children in DeS custody shall receive an assessment using a standardized assessment protocol. The assessment shall include a medical evaluation and, if indicated, a psychological evaluation. The assessment may take place prior to custody, if the need for placement is known in advance, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child's placement shall be reevaluated to ensure that it meets the child's needs and, ifnot, a new placement obtained. The technical assistance committee shall review DCS 's assessment protocol, to determine if it constitutes a complete assessment of a child's individual needs, and if it does not, it will
16

recommend revisions which DeS shall implement.
E. All children in DeS custody shall have access to a reasonable and appropriate education, including special education services the need for which shall be timely identified. Children shall be placed in community schools whenever possible. Within 60 days of the signing of this Settlement Agreement, DeS shall undertake an evaluation of all "in house" schools located within group, residential or institutional facilities, to detennine if such schools are providing children in foster care with access to a reasonable and appropriate education, including special education services the need for which shall be timely identified, and to determine if such schools are providing educational services as required by law. This evaluation will be designed in close collaboration with the technical assistance committee and any educational experts it deems appropriate. The technical assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation. Des shall implement the results of the technical assistance committee's recommendations as they pertain to any schools within the DeS local educational authority (LEA). DeS shall require all recommendations of the technical assistance committee to be mandatory contractual obligations for any contract agency providing "in house" schools located within group, residential or institutional facilities. Within 6 months of the date of the recommendations of the technical assistance committee, DeS shall tenninate the contract with any agency providing "in house" schools located within group, residential or institutional facilities that have not implemented the recommendations of the technical assistance committee, unless the contract agency demonstrates to the approval of the technical assistance committee that additional time up to 6 months is necessary to complete implementation of the recommendations. DeS shall assign a full time educational specialist in each region to ensure that individual children in DeS custody have access to a reasonable and appropriate education,
including special education services the need for which shall be timely identified. DeS shall assign twelve additional lawyers statewide who will specialize in representing children in DeS custody to ensure that individual children in DeS custody have access to a reasonable and appropriate education, including special educ'ation services the need for which shall be timely identified.
F. Psycho-tropic medication shall not be used as a method of discipline or control for any child. Within 6 months of the signing of this Settlement Agreement, DeS shall undertake a review of the policies and procedures surrounding the use of psycho-tropic medications. This evaluation will be designed in close collaboration with the technical assistance committee and any additional experts on the use of psychotropic medication for children it deems appropriate. The technical

17

. . . . ,':r_. ~ ...... ~.

, .

G. H.

assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation, which DeS shall implement. Within 6 months of the signing of this Settlement Agreement, DCS shall create and as soon as possible thereafter fill a position of full time Medical Director, with appropriate qualifications, who shall, among other things, be responsible for overseeing the implementation of policies and procedures concerning the use of psycho-tropic medications for all children in DeS custody, and who shall have the authority to issue and impose corrective actions. The Medical Director shall report directly to the Commissioner ofDCS. When possible, parents shall consent to the use of medically necessary psychotropic medication. In the event that a parent is not available to provide consent for psycho-tropic medication, the regional health unit nurse shall review and consent to medically necessary medication. Regional health unit nurses shall maintain a log of psycho-tropic medication approvals as well as copies of logs maintained by contract agencies for all uses of psycho-tropic medication and shall submit the logs to the Medical Director for review on an ongoing basis.
Within 6 months, of the signing of this Settlement Agreement, DCS shall undertake a review of the policies and procedures surrounding all forms and use of physical restraint and seclusion/isolation of children in the plaintiff class. This evaluation will be designed in close collaboration with the technical assistance committee and any additional experts on the use of restraint and seclusion/isolation for children it deems appropriate. The technical assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation, which DCS shall implement. Within 6 months of the signing of this Settlement Agreement, DCS shall create and as soon as possible thereafter fill a position of full time Medical Director (same position identified in Vl.F. herein). with appropriate qualifications. who shall. among other things. be responsible for monitoring the implementation of policies and procedures surrounding all fonns and use of physical restraint and seclusion/isolation of children in DCS custody. and who shall have the authority to issue and impose corrective actions. The Medical Director shall report directly to the Commissioner of DCS. All uses of physical restraint for children in any placements. and all uses of seclusion/isolation in grouP. residential or institutional placements, shall be reported to the central office resource management unit. Such reports shall be made available to the licensing unit and the Medical Director for appropriate action.
DCS shall not contract with any agency, for which any owner, member of the board of directo!s, or member of the board of trustees of that private agency also holds any other position which may influence the placements provided to children in the plaintiff class. Such positions include, but are

18

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not limited to, juvenile court judges, referees or other c'ourt officers involved in the individual cases of children in foster care. Within 30 days of the signing of this Settlement Agreement, DeS shall notify all contract agencies involved in foster care placements and services of this policy, and shall receive written confirmation from all agencies with existing contracts that they will be in compliance with this policy within 60 days of receiving the written notice, after which time DeS shall terminate its contract with any agency that is not in compliance with this policy. All future contracts or contract renewals shall contain this policy as a binding term of the contract.
1. DeS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
J. DeS will establish and maintain a resource management unit within its central office. The resource management unit will be responsible for training regional staff on placement issues so that regional placement resource management units are able to ensure a careful and appropriate match between the child's individual needs and a placement facility or foster family. DeS's unified computer system will allow for the central office and regional offices to track the following information concerning placements provided by directly by DeS or through contract agencies: the facility's or contract agency's current license and accreditation status and whether any reports of abuse or neglect have been filed andlor substantiated against the facility or agency within the last three years; whether the facility or contract agency has any vacancies; the ages and genders of children whom the facility or agency is licensed to accept; the age and gender of all children in the facility or agency; the level of care that the facility or agency can provide; specialized services available through the facility, agency or by the foster parents; and the total number of children who may reside in the facility or with the agency at anyone time pursuant to the facility's or agency's license. DeS will establish and maintain regional resource management units with sufficient staff and other resources to ensure all children requiring placement are placed promptly and appropriately, and in accordance with their needs. Any agency or program contracting with DeS shall be prohibited from refusing to accept a child referred by DeS as appropriate for the particular placement or program.
K. All children in the plaintiff class shall receive visits from the DeS case manager responsible for their case, whether the child is placed through a program directly run by DeS or through a contract agency, as follows:
1. For children in DeS foster homes, worker-child visiting shall mean a face-to-face visit between the child's DeS case manager and the
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.'

· '
child. Visits may take place in the child's placement, at school if the child is of school age, in the case manager's office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child's adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to detennine whether the child's needs are being met and service goals are being implemented. A new placement shall mean either the child's entrance into custody or any placement that is different from the inunediately prior placement. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caretaker, except for those cases in which the child is an infant. There shall be at least 6 face-to-face visits during the first 8 weeks a child is in a new placement, and at least 3 of these visits shall take place in the child's placement. During the second 8 weeks the child is in a new placement, there shall be at least 1 face-to-face visit every 2 weeks. Following the first 16 weeks a child is in a new placement, there shall be at least 2 face-to-face visits each month.
2. For children in a foster home or facility operated by or under a private contract agency:
a. Private agency case worker: DeS shall require and ensure
as that the private agency case worker visits the child as
frequently necessary to ensure the child's adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child's needs are being met and service goals are being implemented. Visits may take place in the child's placement, at school if the child is of school age, in the case manager's office, or in another appropriate setting. Worker-child visiting Shall mean a face-to-face visit between the child's private agency case worker and the child. A new placement shall mean either the child's entrance into custody in a foster home or facility operated by or under a private contract agency, or any placement in a foster home or facility operated by or under a private contract agency that is different from the immediately prior placement. All visits shall include a private meeting between the private agency case worker and the child out of the presence of the foster parents or other caretaker. except for those case in which the child is an infant. There shall be at least 6 face-to-face visits during the first 8 weeks a child is in a new placement, and at least 3 of these visits shall take place in the child's placement. During the second 8 weeks the child is in a new placement. there shall
20

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be at least 1 face-to-face visit every 2 weeks. Following the fIrst 16 weeks a child is in a new placement, there shall be at least 2 face-to-face visits each month.
b. DeS case manager: The DeS case manager shall visit each child in a foster horne or facility operated by or under a private contract agency as frequently as necessary to ensure the child's adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child's needs are being met and service goals are being implemented, but at least once each month. Worker-child visiting shall mean a face-to-face visit between the child's Des case manager and the child in the child's placement. All visits shall include a private meeting between the DeS case manager and the child out of the presence of the foster parents or other caretaker, except for those cases in which the child is an infant, and, outside the presence of the facility staff and the private contract agency case worker. The private contract agency case worker shall accompany the DeS case manager to these visits at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
L. DeS, in close collaboration with the technical assistance committee and any additional experts the technical assistance committee deems appropriate, if any, shall review the delivery of services and payment structure of "continuum" contracts. The technical assistance committee shall report on the results of the review and make reconunendations. DeS shall implement the reconunendations of the technical assistance committee in regard to the delivery of services and payment structure of "continuum" contracts. However, such recommendations may not include the elimination of the use of "continuum" contracts.
VII. PLANNING FOR CHILDREN
A. DeS shall maintain and update policies and procedures that will establish a planning process for all foster children in Des custody that 1) initially will seek to work intensively with the child's parents and other appropriate family members to allow the child to remain safely at home, if appropriate; 2) in those instances in which removal from the horne is necessary, will work intensively with the child's parents and other appropriate family members in a collaborative process to return the child home quickly under appropriate circumstances consistent with reasonable professional standards; and 3) if return home is not appropriate or cannot be accomplished safely within a reasonable period of time, will assure the
21

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:

.,s.-'-

child an alternative, appropriate permanent placement as quickly as possible.
B. In all cases in which a report of abuse or neglect is substantiated and results in a child being placed in state custody, the DeS worker assigned to the child and family's case shall meet as soon as possible with the child's parents or family member(s) with whom the child was living prior to entering DeS custody to initiate the planning process. ·If the child is already in placement in a private agency, the private agency worker assigned to the case shall also participate in the planning meeting. If the child is 12 years or older, the child shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child's participation would be contrary to hislher best interests. This meeting is different from a permanency plan staffing described in Section VII (C) that occurs within 15 working days of the child coming into custody.
1. This meeting shall take place as soon as possible but in all instances must occur within 7 working days of the child entering state custody.
2. The purposes of the 7-day meeting are to discuss the problems that necessitated the child's removal; to assess the appropriateness of the child's placement based on the reasons for removal, contacts with the child, contacts with the foster home or other placement, and all other available information; to arrange an immediate .visitation schedule between the child and the parents; to identify possible relative placements; to begin an assessment of the child's and family's needs; and to arrange for a schedule of contacts between the parents and the worker.
3. In all cases in which the whereabouts of one or both parents is unknown, DeS immediately shall institute a diligent search for the parent(s), which shall be documented in the child's case record.
4. In all instances in which it is impossible to meet with the parents, the planning process shall begin as described above, notwithstanding the parents' absence, within the time period set forth above.
C. A permanency plan staffmg shall occur within 15 working days of a child entering custody. The permanency staffing shall be attended by the DeS caseworker assigned to the child and family's case, the DeS team leader assigned to the case, and the private agency worker assigned to the child's case if the child is placed with a private agency. DeS shall provide notice of the staffing to the guardian ad litem for the child if one has been
22

appointed and to the court appointed special advocate (CASA) worker for the child if one has been appointed. lfthe child is 12 years or older, the child shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child's participation would be contrary to hislher best interests. The biological parents and foster parents shall be encouraged to attend the meeting and all reasonable efforts shall be made to enable the parents and foster parents to attend. In the event that the biological or foster parents do not attend the staffing, the DCS case manager shall document efforts to ensure their appearance, including the offer to reschedule the staffing if inconvenient and to offer assistance in arranging child care and transportation to the meeting.
1. The purposes of the permanency staffmg meeting are to discuss the problems that necessitated the child's removal; to identify the changes by the parents that may be necessary to allow the child to return home safely; to identify the services that need to be provided to the parents to allow the child to return horne; to determine the appropriateness of the child's placement; to arrange a visitation schedule between the child and the. parents; to ensure that all reasonable efforts will be made to enable the visitation to take place; and to arrange a schedule of contacts between the parents and the worker. In the event that the parents cannot be located or refuse to meet with the worker, the DeS worker shall make and document all efforts made to locate the parent and to ensure that the meeting takes place.
2. The biological parents shall have the opportunity to sign a completed permanency plan at the permanency plan staffmg if it is completed at that time; if it is not, the permanency plan shall be completed and presented to the child's parents for discussion and signature no later than 30 calendar days after the child enters custody.
D. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until such time that return horne is no longer an option, at which time the other concurrently planned goal shall be the child's sole permanency goal for all purposes.
E. For any child who has a pennanency goal of return home for more than 12 months, the child's worker, with written approval from the supervisor, shall include in the record a written explanation justifying the continuation of the goal, and identifying the additional services necessary or
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"

circumstances which must occur in order to accomplish the goal. No child

shall have a permanency goal of return home for more than 15 months

unless there are documented in the record and approved by the child's

worker's supervisor compelling circumstances and reason to believe that

the child can be returned home within a specified and reasonable time

period.

.

F. DeS may assign a permanency goal of long term relative placement to a child for whom it has not made adoption efforts if an appropriate relative has been identified, the relative is willing to assume long-term responsibility for the child but has legitimate reasons for not adopting the child, and it is in the child's best interests to remain in the home of the relative rather than be considered for adoption by another person. In such circumstances, there shall be in place a long term placement agreement signed by DeS and the relative ensuring the permanency and stability of this placement unless emergency circumstances dictate the removal of the child.

G. No child shall be assigned a permanency goal of permanent foster care unless a) the child is at least 15 years old; b) DeS has made every reasonable effort, documented in the record, to return the child home, to place the child with appropriate family members or to place the child for adoption; and c) the person to whom DeS proposes to assign permanent caretaker status has demonstrated a commitment to assuming long-term responsibility for the child.

H. No child. younger than 16 shall be assigned a permanency goal of independent living.

I. All pennanency plans shall contain specific information about how the pennanency goal will be achieved, what services are necessary to make the accomplishment of the goal likely, who is responsible for the provision of those services, when the services will be provided, and the date by which the permanency goal is likely to be achieved. All services documented in the record as necessary for the achievement of the pennanency goal shall be provided, within the time period in which they are needed. These dates cannot be extended more than once, except for extraordinary circumstances, documented in the record and approved by the team coordinator.

1. The child's DeS case manager and supervisor shall have an ongoing responsibility to assure that the child's permanency goal is appropriate or to change it if it is not, to assure that the child's services and placement are appropriate and are meeting the child's specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing

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...;
toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
1. The child's permanency plan shall be reviewed at meetings at least at the following time periods: 6 months after the date the child entered custody, 12 month after the date the child entered custody, 15 months after the date the child entered custody, 21 months after the date the child entered custody, 24 months after the date the child entered custody, and every 3 months thereafter. These meetings are intended to address the responsibilities outlined in this Section VII (1) and must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child's permanency plan. This permanency plan review shall include a face-to-face meeting involving the child's DeS case manager, the DeS supervisor, the worker from the private agency if the child is in placed in a private agency, the parent(s), the foster parent(s) (unless DeS determines that the foster parent's attendance would be inappropriate) and the child, if the child is over 12, and wishes to participate. DeS shall provide notice of any such meeting to the guardian ad litem for the child if one has been appointed and to the court appointed special advocate (eASA) worker for the child if one has been appointed. The plan review shall be scheduled at such a time, and in such a place, as to facilitate the attendance by the child and the child's parents. DeS shaH make all reasonable efforts to ensure the
.parents' and the child's attendance. In the event that the biological or foster parents or the child do not attend the meeting, the Des case manager shall document efforts to ensure their appearance, including the offer to reschedule the staffmg if inconvenient and to offer assistance in arranging child care and transportation to the meeting.
2. The permanency plan shall be reviewed and updated if necessary at each of these permanency plan reviews. A statewide standardized form shall be completed promptly after each meeting, documenting the issues discussed and an assessment of progress toward achievement of the permanency goal.
K. Upon the agreement of the parties, DeS may initiate a pilot program in a specific region of the state to develop a comprehensive family conference model which, if agreed to by the parties, would replace the requirements in sections VII (B), (e) and (J) for the duration of the pilot for that region. Upon the agreement of the parties, after the completion of the pilot program, a comprehensive family conference model may be used to replace the requirements in sections VII (B), (e) and (1) in some or all
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regions of the state and shall become fully enforceable under the terms of this Settlement Agreement.
L. Discharge Planning
1. DCS shall recommend to the court a 90 day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative.
2. A decision to return a child to hislher home or to be placed in the custody of a relative shall be made at a discharge staffmg meeting for any child in state custody regardless of whether that child is to be released from state custody immediately upon return home or whether that child remains in state custody during a 90 day trial home visit.
3. The discharge staffing meeting :hall be attended by the child's DCS case manager, the case manager's supervisor, the worker from the private agency if the child is placed with a private agency, the foster parents (unless DCS determines that the foster parent's attendance would be inappropriate), and the biological parents or relative who is assuming custody and the child. DCS shall provide notice of the meeting to the guardian ad litem for the child if one has been appointed and to the court appointed special advocate (CASA) worker for·the child if one has been appointed. At the discharge staffing meeting, the participants will identify all of the services necessary to ensure that the conditions leading to the child's placement in foster care have been addressed, and that the child's safety will be assured, and will identify the services necessary to support the child and the trial home visit. DCS shall provide or facilitate access to all services necessary to support the child and the trial home visit.
4. During any trial home visit period, the child's case manager shall visit the child in person at least 3 times in the fIrst 30 days and 2 times per month for the remaining 60 days, and each visit shall occur outside the parent's or caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
5. Before the end of any trial home visit period, there shall be a fmal discharge staffing meeting, which shall include the child's case manager, the child, and the parent or relative, to determine the appropriateness of a fmal discharge. For staffmgs attended by a
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ease Manager I, the team leader shall be present at the meeting; otherwise, the team leader shall docwnent in the record approval of the decision to fmally discharge the child or to seek an extension prior to the expiration of the trial home visit. If fmal discharge is determined to be inappropriate, DeS shall make the appropriate application to the court to extend the child's placement in the custody ofDCS before the expiration of the trial home visit period.
VIII. FREEING A CHILD FOR ADOPTION
A, The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as the child's permanency goal becomes adoption, but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate the whereabouts of either parent and for whom no appropriate family member is available to assume custody.
B. DCS has developed a process for making legal risk placements, and will consult with the technical assistance committee to ensure that the process developed will assure that children for whom the plan is adoption, but who are not yet legally freed for adoption, are placed in appropriate adoptive homes as soon as possible. If the technical assistance committee recommends modifications to the process, DeS shall make those adjustments. .
C. DCS shall follow the policies and procedures in its adoption policy and procedUres manual governing the process of freeing children for adoption and selecting adoptive family resources. The technical assistance committee shall review the DeS uniform policies and procedures governing the process of freeing children for adoption and selecting adoptive family resources, and shall make recommendations, which DCS shall implement.
D. DCS policies and procedures establish various time frames for case management and legal activities related to adoptions. DCS will follow the time lines set out in DeS adoption policy and procedures manual. The following is a series of time frames related to critical activities in the adoption process which shall be followed by DeS:
1. Within 30 days of a decision to set a goal of adoption, the case manager will schedule an appointment with the local DeS lawyer to discuss the case and assist in the preparation of the petition to tenninate parental rights.
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2. Within 30 days of that meeting, the lawyer will file the petition to terminate parental rights unless there is a legal impediment to the filing, but in any event the petition will be filed within 90 days of that meeting.
3. For cases where a petition to terminate parental rights has been filed, the case manager will schedule a case conference with adoption staff within 30 days of the petition being filed.
4. If a child's case is appropriate for transfer to the adoption unit, the case must be transferred within 30 days of the case conference.
5. Cases involving full guardianship must be transferred for adoption services within 15 days of guardianship.
6. Case managers will explain the voluntary surrender process to the birth/legal parents at the completion of the permanency plan staffing and if appropriate at each subsequent foster care review board meeting. If requested, the case manager will assist the parentis in accomplishing the surrender process.
-, E. DCS shall provide and maintain an approval process in which foster parents and adoptive parents may be approved simultaneously so that whenever possible and appropriate, replacements can be minimized and foster parents shall be eligible to adopt the children for whom they have been providing foster care. A foster parent who has been providing appropriate foster care for a child for twelve months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
F. For all children for whom an adoptive contract has not been signed within three months after the child has been legally freed for adoption, DCS will convene immediately a specialized adoption team to review the child's individualized recruitment plan. For all children for whom an adoptive contract has not been signed within six months after the child has been legally freed for adoption, DeS will contract with private agencies with proven success in seeking and securing permanent adoptive families for children, using specialized agencies wherever necessary. However, upon written approval of the director of adoptions and documentation in the child's case record regarding potential success of a particularized ongoing recruitment effort, a contract with such private agencies may be delayed for a single period of three months.
G. DeS shall establish and maintain a system of post-adoptive placement services, to stabilize and maintain adoptive placements, to which all adoptive families shall be entitled.
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IX. ADOPTIVE AND FOSTER PARENT RECRUITMENT, RETENTION, AND LICENSING
A. DCS shall establish and maintain a statewide, regional and local program of adoptive and foster parent recruitment, in consultation with the technical assistance committee. DCS will ensure the availability of a toll free phone number in all regions of the state to ensure access to information concerning the availability of adoption information, training, the approval process and children available for adoption.
B. DCS will develop and maintain standards for the approval of foster and adoptive families, to ensure that only appropriate families are approved, and will provide recruitment teams in each region. All such approval will be handled within the regions and field offices, which shall be adequately staffed and trained. DeS shall comply with federal law and shall utilize nationally accepted standards for the approval of foster and adoptive parents, in consultation with the technical assistance committee. These standards shall apply to all approvals of foster and adoptive parents, including those recruited andlor approved through any contract agencies, for any foster child in DeS custody.
c. Des shall maintain a statewide and regional plan of foster parent and
adoptive parent training, in consultation with the technical assistance committee.
1. All applications to be either adoptive or foster families shall be . responded to within 7 days after receipt, and home studies shall be completed within 60 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
2. Training classes shall be available beginning every 30 days in every region with individualized training available as needed, at times convenient for foster and adoptive parent applicants.
3. Foster care support specialists will conduct exit interviews with all foster families who voluntarily resign as foster parents, and DeS shall issue annual reports on wby foster families leave DeS and what steps are necessary to ensure their retention.
4. To the extent possible, Des shall maintain a practice of using existing foster and adoptive families to recruit and retain new foster and adoptive families, and shall maintain a statewide and regional support system for foster families and will develop and maintain a statewide and regional support system for adoptive families.
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5. Beginning in fiscal year 2003 (i.e., July 1, 2002), DeS shall provide adequate and appropriate respite services on a regional basis to foster and pre-adoptive parents with special needs children.
D. By July 1,2001, all foster parent payment room and board rates, including the rates of foster parents under the supervision of private agencies, will at a minimum meet USDA standards and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region. By July 1,2001, relatives who are approved as foster parents shall receive the same foster parent payments as all other foster parents, and all foster payment room and board rates for relatives, including the rates of relative foster parents under the supervision of private agencies, will at a minimum meet USDA standards and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
E. DeS shall provide specialized rates for DeS foster parents providing services to special needs children. DeS shall provide and shall ensure that contract agencies provide any specialized training necessary for the care of special needs children. DeS also will continue to contract with private agencies for the provision of therapeutic foster care and medically fragile foster care. The details concerning the provision of foster care to special needs children will be presented to the technical assistance committee for consultation, including the issue of establishing minimum foster parent payment rates for categories of special needs children. DeS will follow recommendations from technical assistance committee for program modifications.
F. All potential adoptive families, including foster families caring for a child with special needs who has become legally available for adoption, shall be advised of the availability of the adoption subsidy. This notification shall be documented in the child's record, and the family's access to such subsidy shall be ,facilitated.
G. No foster family shall receive a foster child for placement until the family has received foster parenting training, which training shall be specified in consultation with the technical assistance committee. Each foster family shall receive additional annual foster parent training which training shall be specified in consultation with the technical assistance committee. DeS will provide for a waiver of approval of the requirements for relatives wishing to care for related children. Prior to the waiver of requirements, staff shall have completed a home visit and conducted a local criminal records check. In situations where approval for placement has been granted under a waiver, all remaining approval requirements, including the
30

relatives' completion of approved foster parent training shall be completed within 150 days of the placement.
H. In consultation with the technical assistance committee, DeS shall develop and implement a statewide program to ensure that the pool of foster and adoptive families is proportionate to the race and ethnicity of the children and families for whom DeS provides placement and services, provided however that individual children shall be placed in foster homes and adoptive homes without regard to race or ethnicity.
x. STATEWIDE INFORMATION SYSTEM
A. DeS shall establish and maintain a statewide computerized information system for all children in DeS custody that is accessible in all regional offices and intowhich workers shall be able to directly enter data. The state-wide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
B. This system shall include uniform data presentation including but not limited to AFeARS elements from DeS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data in the system. This system shall provide an immediately visible "audit trail" to the data base administrators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity. This system shall be capable of providing system-wide reports. Within 6 months of the signing of this Settlement Agreement, DeS, with the direct involvement and approval of the technical assistance committee, and with the assistance of any management information systems expert(s) which the technical assistance committee determines appropriate, if any, shall undertake and complete an evaluation of the following: (1) the data elements and uniformity of data presentation from DeS for children in the plaintiff class; (2) the audit processes of the data in the system utilized by DeS's current management information systems for children in the plaintiff class; (3) the "audit trail" in the system utilized by DeS's current management information systems for children in the plaintiff class; and (4) the system-wide reports that DeS's management information system is currently able to provide for children in the plaintiff class. The technical assistance committee shall make recommendations including timetables for implementation upon its review of the evaluation, which DeS shall implement.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system. The data shall be
31

audited no less frequently than every 12 months after the signing of this Settlement Agreement to ensure its ongoing accuracy.
XI. QUALITY ASSURANCE
A. No later than January 1, 2002, DCS shall develop and implement a statewide quality assurance program, in consultation with and subject to the approval of the technical assistance committee, which shall be directed by a quality assurance unit. The quality assurance unit's functions will coordinate with and complement the independent Monitor's functions and the unit is intended to become a permanent unit of DCS. The quality assurance unit shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance unit shall track, coordinate and integrate all DCS quality assurance activities. The quality assurance unit shall provide critical attention to the follow-up needed to improve services and outcomes.
B. This unit shall provide regular, periodic reports and shall also conduct specialized case record reviews on issues addressed by this Settlement Agreement, as well as other issues affecting the care of children.
C. This unit shall be directed by a person with appropriate qualifications. The director of the quality assur.ance unit shall report directly to the Commissioner ofDCS. The unit shall be adequately staffed and shall receive special training to fulfill its responsibilities.
D. All reports provided by the quality assurance unit shall be public record, unless disclosure is prohibited by law. It is the intent of the parties to disclose all information that is not individually identifiable.
E. In addition to reviews otherwise required, DeS shall establish a process for conducting special administrative case record reviews, in consultation with the technical assistance committee.
1. The purpose of the reviews is to provide necessary information to DeS management and to determine on an ongoing basis whether DeS is following the provisions of this Settlement Agreement, DeS policy and good social work practice.
2. The reviews will include specific processes and procedures for identifying workers or supervisors who, as a result of a quality assurance review, are in need of additional training, reassignment, or for whom termination may be appropriate.
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3. At a minimum, the quality assurance unit shall, once every twelve months, review a statistically significant number of cases from each region in the state. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this minimum annual case record review, the quality assurance unit, central office and other designated staff, in consultation and with the approval of the technical assistance committee, shall develop a measure of appropriate and professional decision-making, concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DeS's performance.
4. If significant problems are identified within a region, the quality assurance unit shall review a statistically valid sample of cases within each supervisory unit, to identify whether particular units have particular problems and, if necessary, whether administrative action is necessary.
5. Beginning July 1,2002, the quality assurance unit will oversee special administrative reviews. The reviews will include the following categories:
a. All cases in which there have been three or more reports of neglect or abuse concerning a particular caretaker for a particular child in the plaintiff class.
b. All cases in which a child in the plaintiff class is the subject of substantiated or indicated abuse or neglect.
c. All cases within the preceding twelve months in which a child has been placed in three different placements excluding a return home.
d. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
e. All cases in which a child has had a permanency goal of return home for more than 24 months.
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· .
f. All cases in which a child has had a pennanency goal of adoption for more than one year and has not been placed in an adoptive home.
g. All cases in which a child has returned home and has reentered care more than twice and has a plan of return home.
h. All cases in which the date for the accomplishment of the permanency goal of reunification has been exceeded by 12 months.
6. The parties to this Settlement Agreement are concerned with the national problem of the overrepresentation of African American children in child welfare systems. The parties to this Settlement Agreement are committed to ensuring that there is no disparate treatment of, or disparate impact on, African American children in the plaintiff class. Within 90 days of the date of this Settlement Agreement, DCS shall retain an independent expert, jointly agreed to by the parties (or, if the parties cannot agree then appointed by the technical assistance committee), to conduct a statewide evaluation of the Tennessee foster care program. The evaluation shall determine whether there are any disparities concerning the placement, services and treatment provided to African American children in foster care and their families, the recruitment and retention of foster and adoptive families, as well as the foster parent payments provided to foster parents for the care of African American children in foster care. The evaluation and a report of its fmdings and recommendations shall be presented to the Commissioner and the Monitor no later than 12 months from the date the expert is retained. The report shall include a plan and timetables within which the recommendations shall be implemented, beginning immediately after the completion of the evaluation. DCS shall implement the recommendations in the report.
7. The quality assurance unit shall issue reports on a periodic basis, at least every six months. These reports shall be presented to the Commissioner of DCS and to the Monitor. In the event that the DCS Commissioner does not take appropriate action on any of the fmdings in the quality assurance report, the Court Monitor may recommend such action, or plaintiffs may seek an order from the court directing that further action be taken, pursuant to the enforcement procedures set out in this Settlement Agreement.
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F. Within 90 days after the date of this Settlement Agreement, DCS, in conjunction with designated field and central office staff, shall begin the specialized review of all foster children in DCS custody who entered DCS custody prior to October 1, 1998. The permanency plan for each child shall be reviewed and a detennination made regarding the appropriateness of the goal, the barriers to permanency and the services in place to move the child to permanency. This review will include interviews including relevant personnel and an individualized written corrective action plan including, if necessary, a new permanency plan. These special reviews shall occur at least once every three months until permanency is achieved for each child.
G. Within 90 days after the entry of this Settlement Agreement, DCS shall have a process in place under which it shall report on and immediately take all necessary action on the status of children in the following categories:
1. Children in one or more emergency, temporary or shelter facilities for more than 45 days within the last 12 months;
2. Foster children in DCS physical or legal custody who are currently or who have been placed in jail, detention or other correctional facilities and who have not been arrested on a delinquency charge, within the past 12 I1?onths.
3. Children in foster homes or facilities that exceed their licensed capacities, or children in foster homes or facilities that do not have a valid license.
4. Children with a permanency goal ofretum home that has remained in effect for more than 22 months.
5. Children who do not have a permanency plan.
6. Children for whom the permanency goal has not been updated for more than 12 months.
7. Children with a sole permanency planning goal of adoption for more than 12 months and for whom a petition to tenninate parental rights has not been filed.
XII. SUPERVISION OF CONTRACT AGENCIES
A. All contract agencies which provide placements or services to children in the plaintiff class shall only do so pursuant to annual performance-based contracts issued by DCS. Such contracts shall be developed by DCS
35

within 90 days after the approval of this Settlement Agreement. These contracts shall be entered into in the next contracting cycle.
B. Des shall only contract with those agencies that meet the provisions of this Settlement Agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DeS shall not contract with any agency that has not been licensed by the State to provide placements for children in the plaintiff class.
c. DeS shall expand the staff of the current licensing unit to allow for
increased monitoring and oversight responsibilities of the contract agencies. All contract agencies providing placements for children in the plaintiff class shall be inspected annually by DeS licensing staff in an unannounced visit, and DeS shall determine in a written report whether the agency complies with state licensing standards. The licensing unit shall collaborate with the DeS quality assurance unit and the central office resource management unit to detennine agency compliance with the terms of this Settlement Agreement.
D. Alleged abuse or neglect of children placed with a contract agency must be reported by the agency to the DeS child protective services unit in the county in which the facility is located. Additionally, alleged abuse or neglect concerning children placed with any contract agency shall be 'reported to the central office resource management unit and the quality assurance unit. DeS shall incorporate these reports, and their fmdings, into the annual review of each contract agency. DeS will evaluate carefully those reports and consider prior corrective actions, the history of the agency and determine if there are serious problems that place children at serious risk of harm and prevent further contracts from being issued.
XIII. FINANCIAL DEVELOPMENT
A. DeS shall develop and implement policies and procedures by which it can maximize funds available to it through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980, the Medicaid Act, and SS!. The technical assistance committee shall evaluate the work of any current consultants retained by DeS to develop and implement policies and procedures under the terms of this provision, and shall make recommendations on the continued use of the current consultants and/or the use of other consultants. The technical assistance committee shall also evaluate the current policies and procedures in place and in development, and make any recommendations to modify these policies and procedures. DeS shall impleme!lt any recommendations made by the technical assistance committee.
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B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving the children in the class covered by this Settlement Agreement. It is the intent of the State that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal dollars result in additional federal funding. DCS shall establish a mechanism acceptable to the Monitor for reporting the budgeting of both federal and state dollars. Nothing in this provision shall reduce the defendants' fmancial obligations to comply with
. the terms of this Settlement Agreement.
C. FINANCIAL RECORD KEEPING
1. When a child in the plaintiff class is removed from a DCS family foster or adoptive home, the DCS case manager shall, within 7 days, enter this status change and update placement information directly into the Children's Plan Financial Infonnation System (ChipFins) or any comparable database used for this purpose.
2. DCS shall maintain an adequate system for identifying and collecting overpayments to foster care and adoption assistance parents.
3. DeS shall maintain an adequate system relating to cash receipting procedures.
XIV. TECHNICAL ASSISTANCE COMMITIEE
A. A Technical Assistance Conunittee of five neutral experts in the child welfare field has been selected to assist the state in meaningful implementation of the requirements of this Settlement Agreement. The technical assistance committee will have the ability to consult and involve other experts as necessary. John Mattingly, of the Annie E. Casey Foundation, has agreed to convene the technical assistance committee and provide guidance and leadership, as he is available. If any of the 5 technical assistance committee members becomes unavailable, the remaining technical assistance committee members, with the assistance of John Mattingly, will select the replacement(s), with the consent of the parties.
B. The role of the technical assistance committee is to advise DCS on the child welfare policy, management and practice issues delineated in this Settlement Agreement, as well as other issues which DCS or the technical assistance committee agree to consult on. It is understood by the parties
37

and the technical assistance committee that the primary function of the technical assistance committee is advisory; however, DeS shall implement the technical assistance committee's recommendations in all areas so specified in this Settlement Agreement.
C. When time frames are specified for the completion of an evaluation or review by DeS, the technical assistance committee is authorized, after consultation with both parties, to give time-limited extensions for completion of the evaluation or review. The time frames stipulated for implementation of any technical assistance committee recommendations in this Settlement Agreement shall remain in place, and while the technical assistance committee is not authorized to extend implementation time periods for recommendations under this Settlement Agreement, the technical assistance committee is authorized to advise the parties when extensions may be needed.
xv. MONITORING
A. DeS shall enter into a contract consistent with the terms of this Settlement Agreement with an independent and neutral party who will monitor compliance with the terms of this Settlement Agreement. The parties agree the independent Monitor will be Shiela Agneil. DCS will make available a state employee at least at the Case Manager 3 level to work full-time for the Monitor, who shall choose this person and be solely responsible for supervising"and evaluating his/her work and to whom this person shall report exclusively.
B. The state shall provide to the independent Monitor all information necessary to fulfill the Monitor's obligations, including access to documents and personnel, and shall where appropriate facilitate and ensure access to documents and personnel from the contract agencies involved in the care of the plaintiff class members.
C. The technical assistance committee and the Monitor will, within their respective responsibilities, work together and share information so they can remain informed about the operations of the agency. During the initial months of this Settlement Agreement, DCS will coordinate an orientation program for the technical assistance committee and the Monitor. DeS will provide the orientation to the technical assistance committee and the Monitor concurrently.
D. The Monitor shall have the authority to require reports on the status of the implementation of any and all requirements of this Settlement Agreement, the status of foster children in DCS custody, and compliance with this Settlement Agreement.
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· .
E. In order to avoid duplication and to build capacity within the agency, the Monitor will look first to DeS data and to data and reports created and maintained by the DeS Quality Assurance Unit. However, the Monitor will have the authority to require reports and to create new reports concerning the status of foster children in DeS custody and concerning compliance with this Settlement Agreement, to the extent the Monitor deems necessary.
F. Plaintiffs shall have access from the Monitor to all information made available to the Monitor, and to all other information necessary to ensure compliance and enforcement of this Settlement Agreement. If plaintiffs become aware of infonnation related to possible non-compliance about which they wish to investigate, plaintiffs shall notify the Monitor of the matter as part of plaintiffs' investigation, without any limitation to plaintiffs' right to access all information necessary to ensure compliance and enforcement of this Settlement Agreement. Plaintiffs shall not initiate case file reviews unless necessary in connection with a motion for non-compliance or enforcement.
G. All reports made available pursuant to this Settlement Agreement shall be public infonnation, provided that if any report contains, or is requested by the Monitor to contain, individually identifiable infonnation, such individually identifiable information shall not be made public.
H. The Monitor's budget during the first six months after the date of the Settlement Agreement shall not exceed $115,000 and shall include but not be limited to, the salary of the Monitor, the salary of the Monitor's assistant, all travel, meals and lodging expenses which shall be reimbursed at the prevailing State of Tennessee rates. The Monitor's salary shall be set at $65.00 per hour. DeS shall provide the Monitor with adequate office space, necessary office equipment including telephone, computer, access to copiers and other necessary supplies, which shall not be included in the budget. For the remaining period of this Settlement Agreement, the Monitor's budget shall not exceed $275,000 during a 12-month period, unless the Monitor at any time documents the need for additional ftmding and presents that request to DeS for approval. DeS shall approve or deny the request for additional funding within 10 days of receiving the request from the Monitor. If DeS denies the request, or fails to act on the request within 10 days of receiving the request, the Monitor or the plaintiffs may submit the request to the court for approval. The Monitor's and other staffs' salary shall be increased with corresponding increases in the state salary structure but otherwise shall remain as indicated above, and reimbursement for travel, meals and lodging expenses shall continue to be at the prevailing State of Tennessee rates as they may be amended by the state.
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'. . '.

1.

The intent of the parties is for the Monitor to develop a plan that transfers

the primary monitoring function to the Quality Assurance Unit after the

termination of this Settlement Agreement.

XVI. OUTCOME AND PERFORMANCE MEASURES

This section lists the child welfare outcomes and performance indicators related to practice improvements. Performance targets are listed for three time periods for the child welfare outcomes and the practice performance indicators. Period 1 covers 18 months beginning on September 1, 2001. Period 2 covers months 1936, beginning March 1,2003, and Period 3 includes months 37-54, beginning September 1, 2004.

A. Child Welfare Outcomes

The child welfare outcomes will be measured using a combination of longitudinal data analysis and point in time data analysis. The Monitor shall use appropriate and adequate means to determine whether defendants have achieved the following levels of compliance with the following requirements, by measuring defendants' achievement of these requirements as soon as possible after the time periods specified.

1. Reunification

Period I

At least 70% of children entering care after September 1,2001, who are reunified with their parents or caretakers at the time of discharge from custody, shall be reunified within 12 months of the latest removal date.

Period II

At least 75% of children entering care after September I, 2001, who are reunified with their parents or caretakers at the time of discharge from custody, shall be reunified within 12 months of the latest removal date.

Of the remaining children (i.e. those who are not reunified with their parents or caretakers at the time of discharge from custody within 12 months of the latest removal date), 60 % shall be reunified within 24 months of the latest removal date.

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·. , .
Period III
At least 80% of children entering care after September 1, 2001,who are reunified with their parents or caretakers at the time of discharge from custody, shall be reunified within 12 months of the latest removal date.
Of the remaining children (i.e. those who are not reunified with their parents or caretakers at the time of discharge from custody within 12 months of the latest removal date), 75 % shall be reunified within 24 months of the latest removal date.
2. Adoption Finalization (point in time measure). Adoptive placement is defined as the date the adoption contract is signed.
Period I
At least 70% of adoptions that become fmal within the reporting period shall have become fmal within 6 months of the adoptive placement.
Period II
At least 80% of adoptions that become fmal within the reporting period shall have become fmal within 6 months of the adoptive placement.
Period III
At least 85% of adoptions that become fmal within the reporting period shall have become fmal wIthin 6 months of the adoptive placement.
3. Number of placements (measures in this section apply to children in care at any time during the reporting period and children still in care at the end of the reporting period). Placements made prior to September 1, 2001, shall not be counted in this measure. For children requiring emergency hospitalization who return to their immediately prior placement, that return shall not count as an additional placement.
Period I
At least 60% of children in care at any time during the reporting period shall have had two or fewer placements not including
41

.
temporary breaks in placement for children who run away or require emergency hospitalization not exceeding 10 days.
Period II
At least 75% of children in care at any time during the reporting period shall have had two or fewer placements not including temporary breaks in placement for children who run away or require emergency hospitalization not exceeding 10 days.
Period III
At least 85% of children in care at any time during the reporting period shall have had two or fewer placements not including temporary breaks in placement for children who run away or require emergency hospitalization not exceeding 10 days.
4. Length of time in placement. This measure shall include all children who entered care after October 1,1998 and either left care at any time during the reporting period or are still in care at the end of the reporting period. Measurement shall exclude children still in care at the end of the reporting period who are in a long term relative placement for whom a long term placement agreement has been signed, and shall exclude children in permanent foster care.
Period I
At least 60% of children in placement shall have been in placement for two years or less.
No more than 25% of children in placement shall have been in placement for between two and three years.
No more than 15% of children in placement shall have been in placement for over three years.
Period II
At least 70% of children in placement shall have been in placement for two years or less.
No more than 18% of the children in placement shall have been in placement for between two and three years.
No more than 12% of the children in placement shall have been in placement for more than three years.
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Period III
At least 75% of the children in placement shall have been in placement for two years or less.
No more than 20% of the children in placement shall have been in placement for between 2 and 3 years. .
No more than 5% of the children in placement shall have been in placement for more than 3 years.
5. Reentry into placement. Measures in this section apply to children who are discharged from foster care at any time up to the end of the reporting period. For each child, reentry shall be determined from the date of discharge for a period of 12 months. The overall performance percentage of compliance on this measure shall be calculated 12 months after the end of the reporting period. This measure shall only be calculated for periods I and II.
Period I
No more than 8% of the children who are discharged from foster care at any time up to the end of the reporting period shall reenter custody within 12 months after the discharge date from the prior custody episode.
Period II
No more than 5% of the children who are discharged from foster care at any time up to the end of the reporting period shall reenter custody within 12 months of discharge from the prior custody episode.
6. Adoptive placement disruption (defmed as occurring between the signing of the adoption contract and fmalization). Measures in this section apply to children who were placed in an adoptive home during the reporting period.
Period I
No more than 10% of adoptive placements that occurred in the reporting period shall have disrupted.
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" "
Period II
No more than 6% of adoptive placements that occurred in the reporting period shall have disrupted,
Period III
No more than 5% of adoptive placements that occurred in the reporting period shall have disrupted.
7. Achievement measures upon discharge (this measure shall exclude children on runaway status at the time they reach the age of 18).
Period I
At least 80% of the children who are discharged from foster care during the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, currently enrolled in vocational training, or employed full time.
Period II
At least 85% of the children who are discharged from foster care during the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, currently enrolled in vocational training, or employed full time,
Period III
At least 900/0 of the children who are discharged from foster care during the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, currently enrolled in vocational training, or employed full time.
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..
B. Perfonnance Indicators / Practice.
The Monitor shall use appropriate and adequate means to determine whether defendants have achieved the following levels of compliance with the following requirements, by measuring defendants' achievement of these requirements as soon as possible after the time periods specified. The compliance levels articulated in this section shall be enforceable at the levels indicated at the end of periods one, two, and three respectively. However, after March 1, 2002, plaintiffs may seek enforcement of any of these standards in this section at any time upon a showing of defendants' gross deviation from any of these standards.
1. Parent-child visiting
a. The standard:
For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record). The visit shall take place in the child's home ifpossible or in as homelike a setting as possible, or for longer as otherwise required by the child's pennanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child's case manager may consider the wishes of a child (generally older adolescents) and document in the case file any deviation from usual visitation requirements.
b. Measurement periods / compliance levels This measure applies to childrcr. with a goal of reunification .
.Period I
20% of all class members with a goal of reunification shall be visited at least once every two weeks.
For the remaining class members with a goal of reunification who are not visited once every two weeks, at least 75% shall be visited once a month.
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'.
"

Period II

30% of all class members with a goal of reunification shall be visited at least once every two weeks.·

For the remaining class members With a goal of reunification who are not visited once every two weeks, at least 70% shall be visited once a month.

Period III

50% of all class members with a goal of reunification shall be visited at least once every two weeks.

For the remaining class members With a goal of reunification who are not visited once every two weeks, at least 60% shall be visited once a month.

2.

Sibling visiting

a. The standard:

For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent's home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record), or more as otherwise required by the child's permanency plan and reasonable professional standards. This standard does not apply to situations when there is a court order prohibiting visitation or limiting visitation to less frequently than once every two months.

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b. Measurement periods / compliance levels

Period I

75% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month.

Of the remaining children in' the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 85% shall visit at least once every two months.

Period II

85% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month.

Of the remaining children in the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 90% shall visit at least once every two months.

Period III

90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month.

Of the remaining children in the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 90% shall visit at leas! once every two months.

3.

Placing siblings together

a. The standard:

Siblings who enter placement at or near the same time shall be placed together, unless doing so is harmful to one or more of the siblings, one of the siblings .has such exceptional needs that can only be met in a specialized program or facility, or the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. If a sibling group is separated

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..'

-."

'1

at the initial placement, the case manager shall make immediate efforts to locate or recruit a family in whose home the siblings can be reunited. These efforts will be documented and maintained in the case file.

b. Measurement period! compliance levels

Period I

At least 70% of all siblings who entered placement during the reporting period shall be placed together in the same foster home or other placement.

Period II

At least 80% of all siblings who entered placement during the reporting period shall be placed together in the same foster home or other placement.

Period III

At least 85% of all siblings who entered placement during the reporting period shall be placed together in the same foster home or other placement.

4.

Filing a petition to tenninate parental rights

a. The standard:

The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as the child's sole pennanency goal becomes adoption, but in no event later than is required by federal law. The adoption process shall begin inunediately for all children for whom a diligent search has failed to locate the whereabouts of either parent and for whom no appropriate family member is available to assume custody.

b. Measurement period! compliance levels Period I

At least 75% of children in the class with a sole permanency goal of adoption during the reporting period shall'have a petition to terminate parental rights filed within 6 months of when goal was changed to adoption.

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III ._:.1

'.'

Period II

At least 60% of children in the class with a sole pennanency goal of adoption during the reporting period shall have a petition to tenninate parental rights filed within 3 months of when goal was changed to adoption.

Of the remaining children in the class with a sole pennanency goal of adoption during the reporting period who did not have a petition to tenninate parental rights filed within 3 months, at least 50% shall have a petition for termination of parental rights filed within 6 months of when the goal was changed to adoption.

Period III

At least 65% of children in the class with a sole pennanency goal of adoption during the reporting period shall have a petition to tenninate parental rights filed within 3 months of when goal was changed to adoption.

Of the remaining children in the class with a sole pennanency goal of adoption during the reporting period who did not have a petition to terminate parental rights filed within 3 months, at least 75% shall have a petition for termination of parental rights filed within 6 months of when the goal was changed to adoption.

5.

Placement in an adoptive home

a. The standard:

Once there has been a termination ofparental rights for a child in the plaintiff class, an adoptive home shall be identified and an adoption contract shall be signed for that child as soon as possible.

b. Measurement period! compliance levels

Period I

At least 75% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an adoption contract signed within 12 months of the termination of parental rights.

49

• •

Period II

At least 45% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an adoption contract signed within 6 months of the termination of parental rights.

Of the remaining children in the class who have been freed for adoption during the reporting period (for whom termination of parental rights was obtained) who have not had an adoptive home identified and an adoption contract signed within 6 months, at least 70% shall have an adoptive home identified and an adoption contract signed within 12 months of the termination of parental rights.

Period III

At least 65% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an adoption contract signed within 6 months of the termination of parental rights.

Of the remaining children in the class who have been freed for adoption during the reporting period (for whom termination of parental rights was obtained) who have not had an adoptive home identified and an adoption contract signed within 6 months, at least 85% shall have an adoptive home identified and an adoption contract signed within 12 months of the termination of parental rights.

6.

Goal ofpermanent or long term foster care

a. The standard:

No child shall be assigned a permanency goal of permanent foster care unless a) the child is at least 15 years old; b) DeS has made every reasonable effort, documented in the record, to return the child horne, to place the child with appropriate family members or to place the child for adoption; and c) the person to whom DeS proposes to assign permanent caretaker status has demonstrated a commitment to assuming long-term responsibility for the child.

50

· .
b. Measurement period! compliance levels
Period I
No more than 10% of children in the plaintiff class shall have a goal of pennanent or long term foster care.
Period II
No more than 8% of children in the plaintiff class shall have a goal of pennanent or long tenn foster care.
Period III No more that 5% of children in the plaintiff class shall have a goal of pennanent or long-tenn foster care.
7. In-region placements a. The standard: All children shall be placed within their own region or within a 75 mile radius of the home through which the child entered custody, unless the child's needs are so exceptional that they cannot be met by a family or facility within the region, or the child needs re-placement and the child's pennanency goal is to be returned to his parents who at that time reside out of the region or the child is to be placed with a relative out of the region, under which circumstances the regional administrator or the team coordinator shall be specifically required to so certify in writing, based on his or her own examination of the circumstances.
b. Measurement period! compliance levels
Period I
At least 70% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
51

. .
Period II
At least 80% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody
Period III At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
C. Performance Indicators Related to Administration DCS shall complete the following by the dates provided below. 1. On or before July 1, 2001, DCS shall designate a Director of Training as contemplated in section V. E. 2. On or before October 1,2001, DCS shall designate a Director of Quality Assurance as contemplated in section Xl. C. 3. On or before January 1,2002, DCS shall submit to the technical assistance committee an employee incentive and stipend plan as .described in section V. C.
4. On or before September 1, 2001, DCS shall submit to the technical assistance committee a plan for making legal risk placements as described in section VIII. B.
5. On or before January 1, 2002, DCS shall install a toll free number designated to provide adoption information as described in section IX.A.
6. On or before July 1, 2001, every region will submit an adoptive and foster parent recruitment plan as described in section IX.A.
XVII. MODIFICATION
This Settlement Agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
52

.. '.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this Settlement Agreement are separately and independently enforceable, as set forth in this Settlement Agreement. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this Settlement Agreement, or for violations relating solely to an individual child (other than an individual child who is a named plaintiff in this litigation).
2. Unless otherwise specifically stated in a provision of this Settlement Agreement, all provisions of this Settlement Agreement shall apply to all children in the class, regardless of whether they are in a DeS or contract agency placement, and regardless of the type of placement.
3. Nothing in this Settlement Agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of the Settlement Agreement.
B. Dispute Resolution
1. Solely with regard to the provisions contained in Section XVI (A) above regarding outcome measures, the following enforcement process will apply: If Des fails to meet the performance standard for any outcome measure at the end of the specified compliance period, as determined by the Monitor, prior to seeking judicial relief, plaintiffs will submit the non-compliance issue to the technical assistance committee. Within 45 days of that submission, DeS, after consultation with the technical assistance committee and plaintiffs, will present a corrective action plan designed to enable DeS to meet the performance standard within a specified time period. The technical assistance committee will review the plan and reconunend any changes it deems necessary. DeS shall revise the plan based on the recommendations of the technical assistance committee. Upon the technical assistance committee's fmal approval of the plan, the parties agree to be bound by the corrective action plan. Defendants' failure to adopt and implement the corrective action plan within the time period specified constitutes prima facie evidence of noncompliance, for which plaintiffs may seek appropriate legal remedies.
2. With regard to all provisions of this Settlement Agreement, with the exception of the provisions in Section XVI (A) regarding outcome measures for which the enforcement process is set out
53

"
•

above in XVIII (B)(1), the following enforcement process shall apply:
a. Prior to seeking judicial remedies for non-compliance, plaintiffs shall notify the defendants in writing if they believe defendants are out of compliance with any provisions of this Settlement Agreement.
b. The parties shall engage in a 30 day period of good faith negotiations in an effort to resolve the non-compliance issues and shall utilize the Monitor to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this Settlement Agreement and seek immediate relief in court if plaintiffs clearly demonstrate that DeS action or inaction in contravention of this Settlement Agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
d. After the completion of Period II, (36 months from the signing of the Settlement Agreement), if defendants believe that they are in substantial compliance with specific provisions of this Settlement Agreement, they may seek a diminution of monitoring of any or all of those specific provisions from the Monitor. Ifplaintiffs do not oppose that application, the Monitor may diminish monitoring of those provisions, but only to a level sufficient to determine whether compliance continues for the duration of this Settlement Agreement. If plaintiffs oppose the diminution of monitoring, plaintiffs shall seek a fmding of noncompliance with the relevant provisions from the court, and the court shall determine whether non-compliance exists. If the court finds non-compliance, the monitoring of the relevant provisions shall not be diminished. If the court fmds compliance, monitoring shall be diminished as determined by the Monitor. However, even in the event that monitoring of any particular provision is diminished, pursuant to this paragraph, based on an agreed-upon or court-determined finding of substantial compliance, court jurisdiction to eriforce compliance with that and all provisions of this Settlement Agreement shall continue for the duration of the entire Settlement Agreement.
54

· , '

C. Termination and Exit

1. Only after the completion of Period III as defmed in Section XVI

as 54 months after September 1. 2001. Defendants may seek the

termination of court jurisdiction over any specific provision in this

Settlement Agreement, as follows:

.

a. Defendants may seek the termination of court jurisdiction over any specific provision of this Settlement Agreement if the Monitor fmds substantial compliance with the provision at the end of Period III. Ifplaintiffs do not agree that court jurisdiction should be terminated. defendants may seek a ruling terminating court jurisdiction over that provision from the court. The parties intend that the court shall grant termination ofjurisdiction over the provision only if (1) defendants can prove substantial compliance with the provision; AND (2) if plaintiffs fail to demonstrate that the provision is directly related to defendants' achievement of compliance with other provisions of this Settlement Agreement.

b. If the Monitor fmds non-compliance with the provision at the end of Period III, and the Monitor subsequently fmds sustained compliance with the provision for two consecutive six-month periods after the end of Period III, defendants may seek a ruling terminating court jurisdiction over that provision from the court. The parties intend that the court shall grant termination ofjurisdiction over the provision only if defendants can prove substantial compliance with the provision AND if plaintiffs fail to demonstrate that the provision is directly related to defendants' achievement of compliance with other provisions.

2. This Settlement Agreement shall remain in full force and effect until at least the conclusion of Period III. Following the conclusion of Period III. and after the Monitor submits a report on compliance levels after Period III. the defendants may seek a ruling from the court for the full termination of court jurisdiction over this Settlement Agreement based on achievement of the compliance levels specified. so long as there are no pending noncompliance motions and no other pending remedial court orders based on non-compliance with any provisions of this Settlement Agreement. unless plaintiffs can demonstrate that continued court jurisdiction is necessary to accomplish the purposes of this Settlement Agreement.

55

. ..'''' ,

XIX. NAMED PLAINTIFFS

A. The Commissioner ofDCS shall monitor the individual cases of the named plaintiffs in this action; to ensure that all necessary and appropriate plans are developed and implemented and that all necessary placements and services are provided.

B. The parties shall attempt to agree on necessary services and plans for the named plaintiffs, within 30 days after the signing of this Settlement Agreement.

C. The Monitor shall begin overseeing the cases of the named plaintiffs within 45 days after the signing of this Settlement Agreement and continuing for so long as the named plaintiffs remain in defendants' custody. If the parties cannot agree on any aspect of the care of any of the
. named plaintiffs, including placements, services, treatment or plans, the Monitor shall have final decision-making authority. The Monitor shall have the authority to consult with the technical assistance committee on particular issues pertaining to the named plaintiffs, as necessary.

D.
xx.

The Commissioner ofDCS shall ensure that plaintiffs' counsel receive documents and reports every 60 days concerning the status of the named plaintiffs, services that have been provided, and implementation of plans, so long as the named plaintiffs remain in defendants' custody. Plaintiffs' counsel shall receive immediate notification of any significant events or developments concerning the named plaintiffs, including but not limited to any change in placement, services, permanency goal or permanency plans; any reports of any incident of abuse or neglect involving any of the named plaintiffs or occurring at the placement where any of the named plaintiffs are currently placed; any serious incident (requiring generation of a serious incident report as dermed in DCS policy as it exists on the date of the signing of this Settlement Agreement) involving any of the named plaintiffs or occurring at the placement where any of the named plaintiffs are placed.
ATTORNEYS FEES AND EXPENSES

As prevailing parties in this lawsuit, plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this Settlement Agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

56

'. ....' '..
,. ,

DATED:

May --,2001 Nashville. TN

SO ORDERED:

\~_c~·
HONORABLE TODD 1. CAMPBELL, U.S.DJ.

DATE

APPROVED FOR ENTRY:

MARCIA R BINS LO Y (lrrQ hac vice) IRA. P. LUSTBADER (ru:Q hac vice) JEFFREY K. POWELL (mQ hac vice) MADELYN FREUNDLICH CHILDREN'S RIGHTS, INC. 404 Park Avenue South, 11 th Floor New York, NY 10016
~ (212) 683-2210 _~
HOLLINS, WAGSTER&YARBROUGH C. DAVID L. RAYBlN (TN BPR # 3385)
JACQUELINE B. DIXON (TN BPR# 12054)
22nd Floor Sun Trust Center
424 Church Street Nashville, Tennessee 37219
(615) 256-6666

57

· ' IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE

BRIAN A., by his next friend, Bobbi Jean Brooks, )

TRACY B., by her next friend, Pamela Pallas, )

JACK and CHARLES C., by their next friend, )

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita

)

Veasy; and

)

TERRY G., by her next friend, Carol Oldham, )

on their own behalf and on behalf of all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD SUNDQUIST, Governor of the State )

of Tennessee; and

)

GEORGE HATTAWAY, Commissioner of the )

Tennessee Department of Children's Services, )

)

Defendants.

)

Civil Action No. 3:00-0445 Judge Campbell

STIPULATED MODIFICATION OF SETTLEMENT AGREEMENT

Pursuant to Section XVII ofthe Brian A. Settlement Agreement, the parties agree to modify
the Brian A. Settlement Agreement by deleting the text ofSection V.A. ofthe Settlement Agreement
in its entirety and replacing it with the following language:
All provisions of this section shall apply to all DCS Case Managers 1 through 4, Community Service Agency (CSA) custodial case managers, all contract agency foster care case workers and supervisors, and any other workers with corresponding responsibilities for class members. As ofDecember 1, 2001, no CSA employees shall have any supervisory responsibility over case managers of children in the plaintiff class. As ofDecember 1,2001, there shall be at least a 50% reduction of the current number of class members receiving case management from CSA case managers, and
This document was entered on -1- the docket in compH?~ce ~;.ith
Aula 58 and i cr ~iuitl I'b (U).
CC~D nn7/:::;.7I/i Rv [';\;; i

~

'.-
. •

CSA case managers in Davidson and Shelby Counties shall no longer have caseloads that include class members. As ofJuly 1, 2002, CSA case managers shall no longer have caseloads that include children in the plaintiff class.

DATED:

May_, 2001 Nashville, TN

SO ORDERED:

Ce-l. ~ ~;:iA

0-0 R_

HON RABLE TODD J. CAMPBELL

United States District Judge

DATE: ________________________
APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
~. /-?~,{;(:
MARCIA ROBINSON LOWRY (m:Q hac vice) IRA P. LUSTBADER (ru:Q hac vice) JEFFREY K. POWELL (ru:Q hac vice) MADELYN FREUNDLICH CHILDREN'S RIGHTS, INC. 404 Park Avenue South, 11th Floor New York, NY 10016 (212) 683-2210

HOLLINS, WAGSTER & Y DAVID L. RAYBIN (TN BP -#3385) JACQUELINE B. DIXON (TN BPR # 12054) 22nd Floor, SunTrust Center 424 Church Street Nashville, TN 37219 (615) 256-6666
-2-

-,
. .
State ennessee Department of Children's Services 7th Floor, Cordell Hull Bldg. 436 Sixth Avenue, North Nashville, TN 37243-1290 (615) 741-9701
-4-

".

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

BRIAN A., by his next friend, Bobbi Jean Brooks, )

TRACY B., by her next friend, Pamela Pallas,

)

JACK and CHARLES C., by their next friend, )

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita

)

Veasy; and

)

TERRY G., by her next friend, Carol Oldham, )

on their own behalf and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD SUNDQUIST, Governor ofthe State )

of Tennessee; and

)

GEORGE HATTAWAY, Commissioner of the )

Tennessee Department of Children's Services,

)

)

Defendants.

)

Civil Action No. 3:00-0445 Judge Campbell

STIPULATED MODIFICATION OF SETTLEMENT AGREEMENT

Pursuant to Section XVII ofthe Brian A. Settlement Agreement, the parties agree to modify the Brian A. Settlement Agreement by deleting the first sentence of Section XIII.A. of the Settlement Agreement in its entirety and replacing it with the following language:
DCS shall develop and implement polices and procedures by which

-1-

tThheisdodco.Ic<uemt I.nenctowmapsliaennctserewdithon

Rule 58 and I or Rula 79 (a).

en:rJnji PRep,

ByiJJ2L

J
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DMSIQN

BRlAN A., by his next friend Bobbi Jean )

Brooks; TRACY B., by her next friend, )

Pamela Dallas; JACK and CHARLES C., )

by their next friend, Linda Lloyd, AMY D., )

by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda

)

Lloyd; CHARLETTE F., by her next friend )

Juanita Veasy; and TERRY G., by her next )

friend, Carol Oldham, on their own behalf )

and on behalf of all others similarly situated )

)

v.

)

)

DONALD SUNDQUIST, "Governor of )

the State of Tennessee; and GEORGE

)

HATTAWAY, Commissioner ofthe

)

Tennessee Dept. of Children's Services )

NO. 3:00-0445 JUDGE CAMPBELL

ORDER

""Pending before the Court are the following Motions: Plaintiffs' Motion for Approval of

Class Action Settlement (Docket No. 96) and Defendants' Motion for Approval of Class Action

Settlement (Docket No. 98). The Court held a hearing on July 20,2001. The Motions are

GRANTED.

Contemporaneously herewith, the Court has approved and filed the Settlement
ru;Jo'an" Agreement, a Stipulated Modification of Settlement Agreement regarding Section V.A.

additional Stipulated Modification of Settlement Agreement regarding Section XIII.A.

IT IS SO ORDERED.

This dOCUm.enctowmaps.heanntceerewditohn

the dockGt \n," Ru'e 79 (a).

Ru'e 58 and or

"

FRCP, onJ/nflByjJ£:L

-TOJD~~~
UNITED STATES DISTRICT JUDGE

t .. _

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

---------------------------------------------------------------x BRIAN A., by his next friend, Bobbi Jean Brooks; )

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES c., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend,

)

Juanita Veasy; and

)

TERRY G., by her next friend, Carol Oldham,

)

on their own behalf and on behalf of all others

)

similarly situated,

)

Plaintiffs,

)

)

~~~

)

)

DONALD SUNDQUIST, Governor of the State

)

of Tennessee; and

)

GEORGE HAITAWAY, Commissioner of the

)

Tennessee Department of Children's Services

)

)

Defendants. )

---------------------------------------------------------------x

Civil Action No. 3-00-0445 Judge Campbell Magistrate Brown

SETTLEMENT AGREEMENT

t~e~redon

TthheiSddOOCCU~~eC\O,rdn.'Ilc·r?I\"R·\u:t,:a.."n7c9a.

",11th
ta).

RfuR\eC58p~-,-Or IQI1I1(f~fisv.t~~f

; .. \
•
TABLE OF CONTENTS Preamble.......................................................................................................4 1. Principles Of Settlement Agreement and Class Definition................................... .4
A. Principles of Settlement Agreement......................................................4 B. Class Definition..............................................................................6 II. Structure of the Agency..............................................................................6 III. Reporting Abuse and Neglect. ......................................................................7 IV. Regional Services ....................................................................................7 V. Staff Qualifications, Training, Caseload, Supervision..........................................8 VI. Placement and Supervision of Children.......................................................... 13 VII. Planning for Children ...............................................................................21 VIII. Freeing a Child for Adoption......................................................................27 IX. Adoptive and Foster Parent Recruitment, Retention, and Licensing.........................29 X. Statewide Information System....................................................................31 XI. Quality Assurance..... ~ .................... :.......................................................32 XII. Supervision of Contract Agencies.................................................................35 XIII. Financial Development....................................................................... '" ...36 XIV. Teclullcal Assistance Committee..................................................................37 XV. Monitoring...........................................................................................38 XVI. Outcome and Performance Measures.................................................................40
2

XVII. Modification ..........................................................................................52 XVIII. Enforcement, Temrination and Exit. ..............................................................53
A. General Principles Guiding Enforcement.. .............................................53 B. Dispute Resolution.................................................................................................53 C. Termination and Exit.......................................................................55 XIX. Named Plaintiffs....................................................................................56 XX. Attorneys Fees and Expenses.....................................................................56
3

.•·~ ,
PREAMBLE
A. The provisions of this Settlement Agreement resolve the existing disputes and issues in the case of Brian A., et al., v. Don Sundquist. et a1., Civil Action Number 3-00-0445 (Judge CampbeI1lBrown), and satisfy and resolve the claims of the named plaintiffs and the plaintiffs' class in the above-entitled case as of the date of this Settlement Agreement.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this Settlement Agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this Settlement Agreement for as long as the Settlement Agreement remains in effect.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this Settlement Agreement. For as long as this Settlement Agreement remains in effect, all provisions of this Settlement Agreement referring to the "Department," the "Department of Children's Services" or "DCS," upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children's Services concerning the children in the plaintiff class as defined in this Settlement Agreement, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current Tennessee Department of Children's Services under this Settlement Agreement as of the date of this Settlement Agreement.
E. This Settlement Agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF SETILEMENT AGREEMENT AND CLASS DEFINITION
A. Principles of Settlement Agreement
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible. However, child welfare decision-makers must have the professional capacity to make determinations as to when making
4

efforts to preserve the biological family, or leaving the child with that family, is neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be-placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary an arrangement as possible, with its goal being to provide a permanent home for the child as quickly as possible. In making the determination about what plans and services will best meet this goal, the child's interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private contractors to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care placement should be in the least restrictive, most family-like setting possible, and the state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care placement should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making about where and with whom they will spend their childhood, and timely implementation of whatever decisions have been made.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. The state should achieve these goals in a family environment whenever possible, separating the child from the child's parents only when necessary for the child's welfare or in the interest of the child's safety, keeping a
child as close to home as possible.
5

wi I ~ •
I

, .

12. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
13. Except where a particular provision of this Settlement Agreement establishes a specific limit on the resources required to be allocated, defendants shall commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions of the Settlement Agreement.
14. All actions required for plaintiff class members under the Settlement Agreement shall be documented within the individual case file of each member of the plaintiff class. DeS shall have the ability to produce aggregate data requested by the Monitor concerning compliance with the provisions of this Settlement Agreement.
B. Class Definition
Pursuant to the terms of this Settlement Agreement, this case shall be certified as a class action and the class certified shall be dermed as follows: All foster children who are or will be in the legal custody of the Tennessee Department of Children's Services. "Foster children" shall mean all children who are or will be in the legal custody of the Tennessee Department of Children's Services, excluding children who are or will be in the legal custody of the Department of Children's Services upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of the Department of Children's Services upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of the Department of Children's Services upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of the Department of Children's Services, shall be included in the class.
II. STRUCTURE OF THE AGENCY
A. DeS shall establish child welfare policy and determine statewide standards and practices for the entire state. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that uniform forms and data coIIection and reporting are utilized in each region. Regions retain the right to develop and use forms and data instruments that address issues of local concern.
6

r· it can maximize funds available to it through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.

DATED:

July _,2001 Nashville, TN

SO ORDERED:

APPROVED FOR ENTRY: ATTORNEYS FOR PLAINTIFFS:

HONORABLE TODD J. CAMPBELL United States District Judge
DATE: _______________________

MARCIA ROBINSON LOWRY (m:Q hac IRA P. LUSTBADER (m:Q hac vice) JEFFREY K. POWELL (m:Q hac vice) MADELYN FREUNDLICH CHILDREN'S RIGHTS, INC. 404 Park Avenue South, 11 th Floor New York, NY 10016 (212 683-2210

HOLLINS, WAGSTER & Yl ~'-L.''''''LJ

DAVID L. RAYBIN (TN B

385)

JACQUELINE B. DIXON (TN BPR # 12054)

22nd Floor, SunTrust Center

424 Church Street

Nashville, TN 37219

(615) 256-6666

-2-

OF COUNSEL FOR PLAINTIFFS:
RlCHARD B. FIELDS (rn BPR # 4744) 266 South Front Street Memphis, TN 38103-3803 (901) 543-4299
JOHN W. PIERom (rn BPR # 7851) ROBERT LOUIS HUITON (rn BPR # 15496) GLANKLER BROWN, PLLC, Suite 1700 One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (rn BPR# 016052) RITCHIE, FELS & DILLARD, P.e. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
nG-tA.ittt W ~~d {0j feD, Wi'v..... ~/';,-,J
DOUG AS E. DIMOND Assistant Attorney General (TN BPR # 17953)
ELI 1\BETH c. DRlVER
Assistant Attorney General (TN BPR # 19363) Office of the Attorney General 425 Fifth Avenue, North Nashville, TN 37243 (615) 741-3491
-3-

. ;. . .
COIrum SlOner State of Tennessee Department of Children's Services 7th Floor, Cordell Hull Bldg. 436 Sixth Avenue, North Nashville, TN 37243-1290 (615) 741-9701
-4-

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., ET AL.

)

)

Plaintiffs

)

)

v.

)

)

DONALD SUNDQUIST, ET AL.

)

)

Defendants

)

------------------------~)

Civ. Act. No. 3:00-0445 Judge Todd C. Campbell

PLAINTIFFS' MOTION FOR CONTEMPT OF CONSENT DECREE AND FURTHER REMEDIAL RELIEF

Plaintiffs respectfully move this Court, pursuant to Local Rule 8(b), for an Order finding Defendants Phil Bredesen, as Governor of the State of Tennessee (and successor to original Defendant Donald Sundquist), and the Commissioner ofthe Tennessee Department of Children's Services, I in contempt of Court for failing to implement the terms of the Settlement Agreement entered into by the parties and approved by Order of this Court dated July 27,2001 (together, the "Consent Decree"). Plaintiffs also seek appropriate remedial relief directed to Defendants' widespread contempt of the Consent Decree.
This motion is supported by the accompanying Memorandum and the Affidavit (with exhibits) of Marcia Robinson Lowry, sworn to November 19,2003.

I Two days prior to the filing of this motion, Michael J. Miller, who had been the successor to original Defendant George Hattaway, was removed from his position as Commissioner of the Department of Children's Services by Governor Bredesen.
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Plaintiffs respectfully ask the Court to schedule an evidentiary hearing at which

Plaintiffs will formally present evidence of Defendants' contempt to the Court and request

oral argument ofthis motion.

DATED:

November 20, 2003 Nashville, Tennessee

Respectfully submitted,

BY:~~~ CIA ROBINSON LOWRY (p hac vice) DOUGLAS C. GRAY (pro hac vice app. pending) CHILDREN'S RIGHTS, INC. 404 Park Avenue South, 11 th Floor New York, NY 10016 (212) 683-2210

By: DAVID L. RAYBIN (TN BPR # 3385) JACQUELINE B. DIXON (TN BPR # 12054) HOLLINS, WAGSTER & YARBROUGH, P.C. 22nd Floor Sun Trust Center 424 Church Street Nashville, Tennessee 37219 (615) 256-6666
ATTORNEYS FOR PLAINTIFFS

OF COUNSEL:
RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Memphis, TN 38105 (901) 543-4299

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JOHN W. PIEROTTI (TN BPR # 7851) ROBERT LOUIS HUTTON (TN BPR # 15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322 WADE V. DAVIES (TN BPR # 016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
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CERTIFICATE OF SERVICE I hereby certify that true and complete copies of (1) Plaintiffs' Motion for Contempt of Consent Decree and Further Remedial Relief; (2) Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Contempt of Consent Decree and Further Remedial Relief; (3) Affidavit of Marcia Robinson Lowry in Support of Plaintiffs' Motion for Contempt of Consent Decree and Further Remedial Relief (with Exhibits), sworn to November 19, 2003; and (4) Plaintiffs' Motion for Permission to File Memorandum in Excess of 25 Pages, have been served by hand on Defendants' counsel, Douglas E. Dimond, Assistant Attorney General, Office of the Attorney General, Cordell Hull Building, Second Floor, Fifth Avenue North, Nashville, Tennessee 37243.
Jacqueline B. Dixon
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 BROWN,CASE−CLOSED,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:00−cv−00445

A., Brian, et al v. Bredesen, et al Assigned to: Chief Judge Waverly D. Crenshaw, Jr Referred to: Magistrate Judge Joe Brown Demand: $0 Case in other court: 02−05666 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/10/2000 Date Terminated: 07/26/2001 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Brian A. by his next friend, Bobbi Jean Brooks

represented by Corene Thaedra Kendrick Children's Rights, Inc. 404 Park Avenue, S 11th Floor New York, NY 10016 (212) 683−2210 TERMINATED: 01/25/2007

Daniele Gerard Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Email: dgerard@childrensrights.org ATTORNEY TO BE NOTICED

David Louis Raybin Raybin & Weissman, P.C. 424 Church Street Suite 2120 Nashville, TN 37219 (615) 256−6666 Fax: (615) 254−4254 Email: draybin@nashvilletnlaw.com ATTORNEY TO BE NOTICED

Douglas C. Gray Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Fax: (212) 683−4015 TERMINATED: 01/25/2007

Ira P. Lustbader Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Email: ilustbader@childrensrights.org ATTORNEY TO BE NOTICED

Case: 3:00-cv-445

Jacqueline B. Dixon Weatherly, McNally & Dixon, PLC Fifth Third Center Suite 2260 424 Church Street
As of: 07/07/2020 08:43 PM CDT 1 of 62

Nashville, TN 37219 615) 986−3377 Fax: (615) 635−0018 Email: jdixon@wmdlawgroup.com ATTORNEY TO BE NOTICED

Jeffrey K. Powell Children's Rights, Inc. 404 Park Avenue, S 11th Floor New York, NY 10016 (212) 683−2210 TERMINATED: 01/25/2007

Marcia Robinson Lowry Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Email: mlowry@childrensrights.org TERMINATED: 03/24/2017

Melissa A. Cohen Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Fax: (212) 683−4015 Email: melissa.cohen@ppfa.org TERMINATED: 04/21/2014

Michael A. Guth 116 Oklahoma Avenue Oak Ridge, TN 37830−8604 (865) 483−8309 Email: mike@michaelguth.com TERMINATED: 02/04/2005

Patrick S. Almonrode Brown, LLC 111 Town Square Pl. Suite 400 Jersey City, NJ 07310 (877) 561−0000 Fax: (855) 582−5297 Email: patalmonrode@jtblawgroup.com TERMINATED: 02/09/2017

Sarah Teresa Russo Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210 Email: srusso@childrensrights.org TERMINATED: 05/23/2017

Case: 3:00-cv-445

Yasmin Grewal−Kok Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 (212) 683−2210
As of: 07/07/2020 08:43 PM CDT 2 of 62

Email: ygrewal−kok@childrensrights.org TERMINATED: 03/12/2012

Plaintiff Bobbi Jean Brooks

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Tracy B. by her next friend, Pamela Pallas

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 3 of 62

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Pamela Pallas

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address)
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 4 of 62

TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Jack C. by his next friend, Linda Lloyd

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Charles C. by his next friend, Linda Lloyd

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 5 of 62

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Linda Lloyd

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 6 of 62

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Amy D. by her next friend, Frank Koon

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff

Frank Koon

represented by

Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 7 of 62

Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Denise E. by her next friend, Linda Lloyd

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 8 of 62

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Charlette F. by her next friend, Juanita Veasy

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address)
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 9 of 62

TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Juanita Veasy

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Terry G. by her next friend, Carol Oldham, on their own behalf and on behalf of all others similarly situated

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007
Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 10 of 62

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Carol Oldham

represented by Corene Thaedra Kendrick (See above for address) TERMINATED: 01/25/2007

Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Jeffrey K. Powell (See above for address) TERMINATED: 01/25/2007

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Michael A. Guth (See above for address) TERMINATED: 02/04/2005
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 11 of 62

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Andrew H. by his next friend, Laura Hash

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Laura Hash

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 12 of 62

(See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Kenneth I. by his next friend, Russell Morel

represented by David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Russell Morel

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017 Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 13 of 62

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff Nancy J.

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Donna K. by her next friend Laura Hash

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 14 of 62

(See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Kiera L. by her next friend, Laura Hash

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017

Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017

Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017

Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

Plaintiff
Joshua M. by his next friend Angela Blevins

represented by Daniele Gerard (See above for address) ATTORNEY TO BE NOTICED

David Louis Raybin (See above for address) ATTORNEY TO BE NOTICED

Ira P. Lustbader (See above for address) ATTORNEY TO BE NOTICED

Jacqueline B. Dixon (See above for address) ATTORNEY TO BE NOTICED Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 15 of 62

Marcia Robinson Lowry (See above for address) TERMINATED: 03/24/2017
Patrick S. Almonrode (See above for address) TERMINATED: 02/09/2017
Sarah Teresa Russo (See above for address) TERMINATED: 05/23/2017
Yasmin Grewal−Kok (See above for address) TERMINATED: 06/07/2011

V.
Defendant
Donald Sundquist Governor of the State of Tennessee TERMINATED: 12/04/2009

represented by Alexander Stuart Rieger Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−2408 Fax: (615) 532−5683 Email: alex.rieger@ag.tn.gov ATTORNEY TO BE NOTICED

Dianne Stamey Dycus Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−6420 Email: dianne.dycus@ag.tn.gov

Douglas E. Dimond Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: doug.dimond@ag.tn.gov

Elizabeth C. Driver Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: elizabeth.driver@ag.tn.gov

Jonathan P. Lakey Walk Cook & Lakey, PLC 431 S. Main St. Suite 300 Memphis, TN 38103 (901) 685−2662 Fax: (901) 685−6122 Email: jlakey@walkcook.com ATTORNEY TO BE NOTICED

Case: 3:00-cv-445

Martha A. Campbell
Tennessee Attorney General's Office
P O Box 20207
Nashville, TN 37202−0207 As of: 07/07/2020 08:43 PM CDT 16 of 62

(615) 741−3491 Email: martha.campbell@ag.tn.gov TERMINATED: 04/24/2017

Mary Byrd Ferrara Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 532−7913 Fax: (615) 532−5683 Email: mary.ferrara@tn.gov ATTORNEY TO BE NOTICED

Defendant
George W. Hattaway Commissioner of the TN Dept of Children's Services TERMINATED: 12/04/2009

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED
Dianne Stamey Dycus (See above for address)

Douglas E. Dimond (See above for address)

Elizabeth C. Driver (See above for address)

Jonathan P. Lakey (See above for address) ATTORNEY TO BE NOTICED

Martha A. Campbell (See above for address) TERMINATED: 04/24/2017

Mary Byrd Ferrara (See above for address) ATTORNEY TO BE NOTICED

Defendant
Phil Bredesen Governor of the State of Tennessee

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Dianne Stamey Dycus (See above for address) TERMINATED: 05/17/2011

Douglas E. Dimond (See above for address) TERMINATED: 05/17/2011

Elizabeth C. Driver (See above for address) TERMINATED: 05/17/2011

Jonathan P. Lakey (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-445

Lindsey O. Appiah Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 As of: 07/07/2020 08:43 PM CDT 17 of 62

(615) 741−7630 Fax: (615) 532−5683 TERMINATED: 07/11/2012

Martha A. Campbell (See above for address) TERMINATED: 04/24/2017

Mary Byrd Ferrara (See above for address) ATTORNEY TO BE NOTICED

Defendant
Viola Miller Commissioner of the Tennessee Department of Children's Services

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Douglas E. Dimond (See above for address) TERMINATED: 05/17/2011

Elizabeth C. Driver (See above for address) TERMINATED: 05/17/2011

Jonathan P. Lakey (See above for address) ATTORNEY TO BE NOTICED

Lindsey O. Appiah (See above for address) TERMINATED: 07/11/2012

Martha A. Campbell (See above for address) TERMINATED: 04/24/2017

Mary Byrd Ferrara (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Shiela Agneil 1939 Hayselton Drive Jefferson City, MO 65109 (573) 893−8112 Court Appointed Monitor

Interested Party Department of Children's Services

represented by Alexander Stuart Rieger (See above for address) ATTORNEY TO BE NOTICED

Douglas E. Dimond (See above for address) TERMINATED: 05/17/2011

Elizabeth C. Driver (See above for address) TERMINATED: 05/17/2011

Lindsey O. Appiah (See above for address)
Case: 3:00-cv-445 As of: 07/07/2020 08:43 PM CDT 18 of 62

TERMINATED: 07/11/2012
Martha A. Campbell (See above for address) TERMINATED: 04/24/2017
Mary Byrd Ferrara (See above for address) ATTORNEY TO BE NOTICED
Shanta J. Murray Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 532−9634 Email: shanta.murray@ag.tn.gov TERMINATED: 02/14/2013

V. Amicus Attorney John Michael Thompson

represented by John Michael Rettew Thompson Ward, Derryberry & Thompson 404 James Robertson Pkwy Suite 1720 Nashville, TN 37219 (615) 244−0554 Fax: (615) 244−1229 Email: pettifogger@msn.com ATTORNEY TO BE NOTICED

V.
Intervenor
Class of Minors in the custody of the Tennessee Department of Children's Services in the adoption process or waiting for adoption TERMINATED: 02/04/2005

represented by Michael A. Guth (See above for address) TERMINATED: 02/04/2005

Date Filed # Docket Text

05/10/2000

1 CLASS ACTION COMPLAINT (Summons(es) issued); Filing fee paid in the amount of : $150 Receipt # 74028 (af) (Entered: 05/11/2000)

05/10/2000

2 CERTIFICATE of Good Standing of Marcia Lowry from the SD of NY filed by pltfs (af) (Entered: 05/11/2000)

05/10/2000

3 CERTIFICATE of Good Standing of Ira P. Lustbader from the SD of NY filed by pltfs (af) (Entered: 05/11/2000)

05/10/2000 4 MOTION by pltfs for class certification (af) (Entered: 05/11/2000)

05/10/2000

5 MEMORANDUM OF LAW by pltfs in support of motion for class certification [4−1] (af) (Entered: 05/11/2000)

05/10/2000

6 NOTICE of Initial Case Management Conference Case referred to Magistrate Judge Juliet E. Griffin , ; Case Management Conference set for 4:00 p.m. on 6/19/00 (af) (Entered: 05/11/2000)

05/12/2000

7 ORDER by Judge Todd J. Campbell: case is being referred to the Magistrate Judge for customized case management. The stay of discovery imposed is vacated. The time for a party to respond to any pending discovery request shall run from the date the party is

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05/15/2000
05/16/2000 05/16/2000 06/05/2000
06/05/2000 06/07/2000
06/28/2000 06/30/2000 06/30/2000 07/06/2000
07/12/2000 07/13/2000 07/13/2000 07/14/2000 07/17/2000 07/19/2000 07/31/2000 07/31/2000 07/31/2000 08/01/2000 08/01/2000

served w/ this order. Pltf shall promptly serve a copy of this order on defts. Upon completion of the initial case management conference, the CMO entered by the Magistrate Judge shall include a target trial date. Magistrate Judge shall promptly forward the CMO to the District Judge. Absent good cause the case shall be set for trial by order of the District Judge. EOD 5/12/00 (cc: all counsel) (dlt) Modified on 05/17/2000 (Entered: 05/12/2000)
8 ORDER by Magistrate Judge Juliet E. Griffin Order of recusal and reassigned to Magistrate Judge Joe B. Brown. In consultation w/ Judge Brown, the ICMC, scheduled for 6/19/00 at 4:00 p.m., central time, remains scheduled, unless otherwise ordered by Judge Brown. Pltfs' counsel shall serve a copy of this order upon the defts or their counsel. EOD 5/15/00 (cc: all counsel) (dlt) (Entered: 05/15/2000)
9 RETURN OF SERVICE executed upon deft George W. Hattaway by serving Michelle L. Richardson on 5/10/00. (dlt) (Entered: 05/16/2000)
10 RETURN OF SERVICE executed upon deft Donald Sundquist by serving Paul Summers in officail capacity only on 5/10/00. (dlt) (Entered: 05/16/2000)
ATTORNEY APPEARANCE for defts by Douglas E. Dimond per signature on an Agreed Order to reschedule ICMC and to extend the time for defts to answer. (dlt) (Entered: 06/06/2000)
PROPOSED Agreed Order to reschedule the ICMC for 7/6/00 at 1:30 and to extend the time for the defts to answer until 7/31/00. (dlt) (Entered: 06/06/2000)
11 ORDER by Magistrate Judge Joe B. Brown Case Management Conference reset for 1:30 on 7/6/00. Defts' time to answer or respond to pltfs' complaint shall be extended until 7/31/00. EOD 6/7/00 (cc: all counsel) (dlt) (Entered: 06/07/2000)
DEFTS' PROPOSED Case Management Plan (dlt) (Entered: 06/28/2000)
JOINT PROPOSED Case Management Plan (dlt) (Entered: 07/03/2000)
PROPOSED Initial Case Management Order (dlt) (Entered: 07/03/2000)
12 JOINT CASE MANAGEMENT PLAN AND ORDER by Magistrate Judge Joe B. Brown: Plan will be field. Case management order w/ target trial date will be filed by 7/14/00. EOD 7/7/00 (cc: all counsel) (dlt) (Entered: 07/07/2000)
13 NOTICE by pltfs of taking deposition of Tennessee Department of Children's Services on 7/24/00 and 8/21/00. (dlt) (Entered: 07/13/2000)
14 MOTION by defts to stay discovery. (dlt) (Entered: 07/14/2000)
15 MEMORANDUM of Law by defts in support of motion to stay discovery. [14−1] (dlt) (Entered: 07/14/2000)
PROPOSED Initial Case Management Order (dlt) (Entered: 07/17/2000)
16 RESPONSE by pltfs to motion to stay discovery. [14−1] (dlt) (Entered: 07/18/2000)
17 REPLY by defts to response to motion to stay discovery. [14−1] (dlt) (Entered: 07/19/2000)
18 RESPONSE by defts to motion for class certification [4−1]. (dlt) (Entered: 08/01/2000)
19 MOTION by defts to dismiss. (dlt) (Entered: 08/01/2000)
20 MEMORANDUM by defts in support of motion to dismiss. [19−1] (dlt) (Entered: 08/01/2000)
21 CERTIFICATE of Good Standing filed by pltfs for Jeffrey Powell from the USDC SD/NY. (dlt) (Entered: 08/02/2000)
22 MOTION by pltfs for a protective order re: governing the confidentiality of the case files of the eight named pltfs to be produced by defts on 8/10/00. (dlt) (Entered: 08/02/2000)

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08/01/2000 08/01/2000 08/02/2000 08/08/2000
08/17/2000 08/18/2000
08/21/2000 08/21/2000 08/28/2000 08/30/2000 08/30/2000 09/01/2000
09/01/2000 09/12/2000 09/18/2000 09/18/2000 09/18/2000
09/22/2000

23 MEMORANDUM of Law by pltfs in support of motion for a protective order [22−1]. (w/ attached exhibits 1−2) (dlt) (Entered: 08/02/2000)
24 AFFIRMATION by pltfs of Ira P. Lustbader in support of pltfs' mtn for a protective order [22−1]. (dlt) (Entered: 08/02/2000)
PROPOSED Agreed Protective Order (dlt) (Entered: 08/02/2000)
25 AGREED PROTECTIVE ORDER by Magistrate Judge Joe B. Brown: Confidentiality of any individually−identifying information in the case files pertaining to the eight named pltfs. Terming pltf's protective order [22−1]. EOD 8/8/00 (cc: all counsel) (dlt) (Entered: 08/08/2000)
26 ORDER and Memorandum by Magistrate Judge Joe B. Brown denying motion to stay discovery [14−1] for reasons set out in order. EOD 8/17/00 (cc: all counsel) (dlt) (Entered: 08/17/2000)
27 INITIAL CASE MANAGEMENT ORDER by Magistrate Judge Joe B. Brown: Case Management Conference held on 7/6/00. Pltf shall have until 8/21/00 to reply to deft's mtn for class certification[4−1]. Pltf's shall have until 8/21/00 to file a response to motion to dismiss. Discovery shall be stayed pending disposition of a mtn to dismiss. [19−1] EOD 8/18/00 (cc: all counsel) (dlt) (Entered: 08/18/2000)
28 REPLY by pltfs to response to motion for class certification [4−1]. (w/ attached exhibits 1−3) (dlt) (Entered: 08/22/2000)
29 RESPONSE by pltfs to motion to dismiss [19−1]. (w/ attached exhibits 1−2) (dlt) (Entered: 08/22/2000)
30 LETTER from pltfs requesting a conference call regarding scheduling of depositions. (dlt) (Entered: 08/28/2000)
31 OBJECTIONS by defts to order denying the mtn to stay discovery. [26−1] (dlt) (Entered: 08/31/2000)
32 MEMORANDUM of Law by deft in support of objection [31−1] (dlt) (Entered: 08/31/2000)
33 ORDER by Magistrate Judge Joe B. Brown: CMC held at the request of the pltfs' attorney on 8/31/00. Magistrate Judge appreciates the fact that the parties are tentatively scheduling depositions so that in the event the Magistrate Judge's ruling is not overturned the matter can proceed promptly. Magistrate Judge sees no reason to interject the Court into the production of documents at this time. If the parties have a serious disagreement over the matter, they are reminded of the requirement to contact the Magistrate Judge for a further telephone conference before filing formal objections. EOD 9/1/00 (cc: all counsel) (dlt) (Entered: 09/01/2000)
34 REPLY by defts to response to motion to dismiss. [19−1] (dlt) (Entered: 09/05/2000)
35 RESPONSE by pltfs to objection to the Magistrate Judge's Order denying mtn to stay discovery [31−1]. (dlt) (Entered: 09/13/2000)
36 MOTION by deft Donald Sundquist & deft George W. Hattaway to stay discovery pending decision of appeal (tlc) (Entered: 09/19/2000)
37 MEMORANDUM by deft Donald Sundquist & deft George W. Hattaway in support of motion to stay discovery pending decision of appeal [36−1] (tlc) (Entered: 09/19/2000)
38 ORDER by Judge Todd J. Campbell: Pending is deft's ntc of objections [31−1] to Magistrate Judge's order denying defts' mtn to stay discovery [26−1]. Defts' mtn for review is denied. The order of the Magistrate Judge [26−1] is affirmed. EOD 9/19/00 (cc: all counsel) (gi) (Entered: 09/19/2000)
39 ORDER by Magistrate Judge Joe B. Brown: Brief telephone conference held on 9/21/00. Denying motion to stay discovery pending decision of appeal [36−1] as moot inasmuch as the District Court has now ruled on that matter. Clerk is directed to return this file to Judge Campbell where various dispositive mtns are pending. EOD 9/22/00 (cc: all counsel) (dlt) (Entered: 09/22/2000)

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10/20/2000 10/24/2000

40 AGREED ORDER by Magistrate Judge Joe B. Brown: Telephone conference set for 3:30 on 10/23/00 w/ regard to discovery issues. EOD 10/24/00 (cc: all counsel) (dlt) (Entered: 10/24/2000)
41 ORDER by Magistrate Judge Joe B. Brown: Case Management conference held 10/23/00 . Clerk is directed to file letter from pltf and respon by Attorney General as the next docket entries. AG is directed to advise that contract agency that unless the files are produced in sufficient time for the AG to furnish them to the pltf by 11/7/00. Contract agency should file their objections by 11/1/00. AG is directed by 11/7/00 to advise the pltfs whether there are documents in these files which are not contained in the files that are being produced. Privilege log should be file by 11/7/00. Computerized files should be produced by 11/1/00. Pltfs are directed to furnish by 11/1/00 a letter to the defts stating in general terms what they seek to understand and furnishing documents they wish to learn more about. EOD 10/25/00 (cc: all counsel) (dlt) (Entered: 10/25/2000)

10/25/2000 42 LETTER from pltfs to the Court re: discovery issues. (w/ attached exhibits 1−2) (dlt) (Entered: 10/25/2000)

10/25/2000 43 LETTER from defts to the Court re: the clarification of deft's position on the discovery issues. (w/ attachments) (dlt) Modified on 10/25/2000 (Entered: 10/25/2000)

10/25/2000 10/25/2000
10/30/2000 11/06/2000

44 MEMORANDUM OF THE COURT (cc: all counsel) EOD 10/26/00 (dlt) (Entered: 10/26/2000)
45 ORDER by Judge Todd J. Campbell: For reasons state in the accompanying Memorandum, granting in part and denying in part defts' motion to dismiss [19−1]. Pltfs' Americans w/ Disabilities Act claims are dismissed. EOD 10/26/00 (cc: all counsel) (dlt) (Entered: 10/26/2000)
46 ORDER by Magistrate Judge Joe B. Brown: Telephone conference set for 10:00 on 11/13/00 to be initiated by counsel for the pltf. EOD 10/31/00 (cc: all counsel) (dlt) (Entered: 10/31/2000)
47 ORDER by Magistrate Judge Joe B. Brown: Telephone conference reset for 3:00 p.m. on 11/15/00 , to be initiated by Mr. Lustbader. EOD 11/7/00 (cc: all counsel) (dlt) Modified on 11/07/2000 (Entered: 11/07/2000)

11/07/2000

48 NOTICE by defts of Privilege Log pursuant to Fed. R. Civ. P. 26(b)(5) and the order of the Magistrate Judge, the defts assert that the following records from the Department of Children's Services legal files pertaining to the 8 named pltfs are privileged as work product and/or attorney−client communications. (dlt) (Entered: 11/08/2000)

11/15/2000 49 CLERK'S RESUME: Case management conference held on 11/15/00 . Order to enter. C/R : Taped No. 406 MB (dlt) (Entered: 11/17/2000)

11/15/2000 11/16/2000
12/04/2000 12/07/2000

50 NOTICE by defts of filing Mediation Proposal (dlt) Modified on 11/17/2000 (Entered: 11/17/2000)
51 ORDER by Magistrate Judge Joe B. Brown: Case management conference held on 11/15/00. Parties discussed w/ the Magistrate Judge the state's mediation proposal which was filed w/ the Court during the hearing. Parties have requested additional time to consider the mediation proposal. A further case management conference set for 1:00 p.m on 11/28/00. EOD 11/17/00 (cc: all counsel) (dlt) (Entered: 11/17/2000)
PROPOSED Order to refer case to mediation and schedule limited discovery. (dlt) (Entered: 12/05/2000)
52 ORDER by Magistrate Judge Joe B. Brown: Case Management Conference held on 11/28/00 . Pltfs will provide the defts a request for production of documents by 12/5/00; defts will provide to the pltfs a copy of DCS policy manuals on 12/8/00; by 12/22/00, deft will provide to the pltfs documents requested on 12/5/00. On 12/8/00, parties will exchange names and resumes of 3 or more potential mediators; by 12/22/00 the Court will select a mediator, if parties can not agree; by 1/5/01, each party shall submit to the mediator and to the other party an outline of a proposed settlement agreement. On 2/2/01, mediator will provide a status report to the Court. EOD 12/7/00 (xc: Clerk of Court) (cc: all counsel) (dlt) (Entered: 12/07/2000)

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12/08/2000 12/14/2000

53 TRANSCRIPT filed of Case Management Conference on 11/28/00 before Magistrate Judge Brown. CR: Cindi Kellam. (dlt) (Entered: 12/08/2000)
54 NOTICE by defts of filing for the Court's consideration their nominated mediators. (dlt) (Entered: 12/15/2000)

12/18/2000 55 LETTER from pltfs re: mediation. (w/ attachments) (dlt) (Entered: 12/26/2000)

12/26/2000

56 ORDER by Magistrate Judge Joe B. Brown: Telephone conference held on 12/21/00. Magistrate Judge selects Mr. Paul W. DeMuro, 82nd Essex Ave, Montclair, NJ 07042 as the mediator in this matter. Clerk is directed to furnish Mr. DeMuro DE Nos. 1,5,22,23,25−27,33,38−45,51,52, a copy of the docket sheet, and this order. Parties are directed to consult w/ Mr. DeMuro as soon as practical to begin the mediation process, in accordance w/ the schedule set out in DE# 52. EOD 12/26/00 (cc: all counsel, mediator) (dlt) (Entered: 12/26/2000)

02/07/2001
02/07/2001 03/01/2001 03/14/2001

57 ORDER by Magistrate Judge Joe B. Brown: Mag. Judge fully agrees at this point w/ Mr. DeMuro's report of 2/1/01, which will be filed under seal w/ an appropriate docket number. Mag. Judge directs that the mediator proceed as set forth w/ mediations scheduled from 2/6/01 through 3/9/01. Informall status conference w/ the parties and mediator following the conclusion of the meeting on 3/9/01. EOD 2/7/01 (cc: all counsel) (dlt) Modified on 06/28/2001 (Entered: 02/07/2001)
58 LETTER from Paul DeMuro re: mediation report filed under seal. (dlt) (Entered: 02/07/2001)
59 ORDER by Judge Todd J. Campbell: Parties to this action are participating in mediation of their disputes. Denying pltfs' motion for class certification [4−1] w/o prejudice to its being refiled at the conclusion of the mediation process. EOD 3/1/01 (cc: all counsel) (dlt) (Entered: 03/01/2001)
60 ORDER by Magistrate Judge Joe B. Brown: Parties are directed to continue mediation through 4/4/01. Case Management Conference set for 2:00 p.m. on 4/5/01 . Mr. DeMuro is requested to provide the Court w/ a progress report by the close of business on 3/31/01. EOD 3/15/01 (cc: all counsel) (dlt) (Entered: 03/15/2001)

04/09/2001

61 ORDER by Magistrate Judge Joe B. Brown: Case Management Conference held on 4/5/01 . Mediation will continue through 4/30/01. All stays on discovery will be lifted as of 5/1/01 and the following scheduling order shall apply. Discovery ddl set for 3/22/02; dispositive mtn filing ddl set for 4/19/02 . EOD 4/9/01 (cc: all counsel) (dlt) (Entered: 04/09/2001)

05/16/2001 05/16/2001 05/18/2001
05/23/2001 05/23/2001

62 JOINT MOTION for preliminary approval of settlement agreement and for order directing distribution of legal ntc of proposed settlement agreement and related matters . (dlt) (Entered: 05/17/2001)
63 MEMORANDUM in support of joint motion for preliminary approval of settlement agreement [62−1] and for order directing distribution of legal ntc of proposed settlement agreement and related matters [62−2]. (w/ att'd exhibits A & B) (dlt) (Entered: 05/17/2001)
64 ORDER by Judge Todd J. Campbell: Joint motion for preliminary approval of settlement agreement [62−1] and for order directing distribution of legal ntc of proposed settlement agreement and related matters [62−2] is set for hearing at 10:00 a.m. on 5/23/01. Clerk shall post this Order, and the proposed settlement documents, on the Court's website. EOD 5/18/01 (cc: all counsel) (dlt) Modified on 05/18/2001 (Entered: 05/18/2001)
65 CLERK'S RESUME: Hearing on motion for preliminary approval of settlement agreement [62−1] and for order directing distribution of legal ntc of proposed settlement agreement and related matters [62−2] held on 5/23/01. Order to enter C/R : Jim Spence (dlt) (Entered: 05/23/2001)
66 ORDER by Judge Todd J. Campbell: Court held a hearing on 5/23/01, to consider the Joint Mtn for Prelimiary Approval of Settlement Agreement [62−1][62−2]. Counsel for the parties shall submit by 5/30/01 authorities and the revised ntc and order. If the Revised Order is signed and entered, the Court will hold a fairness hearing on the Settlement Agreement on 7/20/01 at 9:00 a.m. EOD 5/23/01 (cc: all counsel) (dlt)

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05/30/2001 05/30/2001 05/30/2001 05/31/2001
05/31/2001 06/07/2001
06/07/2001 06/18/2001 06/21/2001
06/21/2001 06/21/2001 06/21/2001 06/21/2001 06/22/2001 06/25/2001 06/25/2001 06/25/2001
06/25/2001

(Entered: 05/23/2001)
67 LETTER from pltfs re: legal authority in support of the inclusion of future foster children in the class to be certified for the purposes of the Settlement Agreement reached in this matter. (dlt) (Entered: 05/30/2001)
PROPOSED Order directing distribution of legal ntc of proposed settlement agreement and related matters. (w/ att'd proposed settlement agreement) (dlt) (Entered: 05/30/2001)
68 TRANSCRIPT filed of proceedings−hearing before Judge Campbell on 5/23/01. C/R: James Spence (dlt) (Entered: 05/31/2001)
69 ORDER by Judge Todd J. Campbell granting motion for preliminary approval of settlement agreement [62−1], and for order directing distribution of legal ntc of proposed settlement agreement and related matters [62−2]. Ddl for the receipt of objections &/or comments regarding the proposed settlement agreement shall be 12:00 p.m. on 6/25/01. Fairness hearing set for 9:00 a.m. on 7/20/01 . More details w/in the order. EOD 5/31/01 (cc: all counsel) (dlt) (Entered: 05/31/2001)
70 ORDER by Judge Todd J. Campbell: Legal Notice of Settlement Agreement, details w/in the order. EOD 5/31/01 (cc: all counsel) (dlt) (Entered: 05/31/2001)
71 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 6/5/01 filed by Rebecca Moore. The Clerk is directed to file the letter as part of the record in this case. The Clerk is further directed to furnish counsel w/ a copy of the letter and this Order. EOD 6/8/01 (cc: all counsel) (dlt) (Entered: 06/08/2001)
72 LETTER from Rebecca Moore to the Court re: Department of Children Services practice and procedures regarding her family. (w/ attachment) (dlt) (Entered: 06/08/2001)
73 MAIL Returned [71−1], [72−1] addressed to Marcia Robinson Lowry attorney for pltf; envelope marked not deliverable as addressed unable to forward, return to sender. (dlt) (Entered: 06/19/2001)
74 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 6/10/01 filed by Margie Sue Pruitt. Clerk is directed to file the letter as part of the record int his case. Clerk is further directed to furnish counsel w/ a copy of the letter and this Order. EOD 6/21/01 (cc: all counsel) (dlt) (Entered: 06/21/2001)
75 LETTER by Margie Sue Pruitt to the Court re: Department of Children Services. (dlt) (Entered: 06/21/2001)
76 LETTER from Arthur S. Masker to the Court re: settlement agreement in this case. (dlt) (Entered: 06/22/2001)
77 LETTER from Denzel M. Chapman to the Court re: settlement hearing. (dlt) (Entered: 06/22/2001)
78 LETTER from Larry J. Rose re: settlement hearing. (dlt) (Entered: 06/22/2001)
79 LETTER (copy) from Kimisha Edwards re: her custody of the state. (letter forwarded from attorney Doug Dimond) (dlt) Modified on 06/26/2001 (Entered: 06/26/2001)
80 LETTER from Meri Dickerson re: Settlement agreement and her custody battle. (dlt) (Entered: 06/26/2001)
81 LETTER from Meri Dickerson to the Court re: Settlement Agreement and the civil rights of children being violated. (dlt) (Entered: 06/26/2001)
82 NOTICE by Ira P. Lustbader, attorney for pltfs, of filing an original and one copy of 2 handwritten letters from a child in DCS custody in foster care, in response to the Ntc published concerning Brian A. Settlement Agreement. (w/ att'd copy of letter) (dlt) (Entered: 06/26/2001)
83 LETTER from Kimisha Edwards re: Settlement Agreement and the violation of her rights. (dlt) (Entered: 06/26/2001)

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06/25/2001 06/26/2001 06/28/2001
06/28/2001
06/28/2001
07/09/2001
07/09/2001 07/09/2001 07/13/2001
07/13/2001 07/13/2001 07/13/2001 07/16/2001 07/16/2001 07/16/2001 07/16/2001 07/16/2001

84 OBJECTIONS to Settlement Agreement by T.D. (dlt) (Entered: 06/26/2001)
85 LETTER from David Howard to the Court re: settlement agreement. (dlt) (Entered: 06/26/2001)
86 ORDER by Judge Todd J. Campbell: Court is in receipt of the following filing: [85−1], [83−1], [82−1], [81−1], [80−1], [79−1], [78−1], [77−1], and [76−1]. Clerk is directed to furnish w/ a copy of the filings and this Order. (cc: all counsel, sent copies of letters to attorneys of record) (dlt) (Entered: 06/28/2001)
87 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 6/26/01 from Ira P. Lustbader attaching 2 separate letters from Meri Dickerson and a letter from Ann Moore. Clerk is directed to file the letter and attachments as part of the record in this case. Clerk is further directed to furnish counsel w/ a copy of the letter, the attachments and this Order. EOD 6/28/01 (cc: all counsel) (dlt) (Entered: 06/28/2001)
88 LETTER from Ira P. Lustbader attorney for pltfs re: Enclosed please find the originals of 2 separate letters from Meri Dickerson and one from Ann Moore, received by my office 6/25/01 in response to the ntc published concerning the Brian A. Settlement Agreement. (w/ att'd letters) (dlt) (Entered: 06/28/2001)
89 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 6/28/01 from Arthur S. Masker and a letter dated 6/28/01 from Mary Ann Stackhouse. Clerk is directed to file the letters as part of the record in this case. Clerk is further directed to furnish counsel w/ a copy of the letters and this Order. EOD 7/9/01 (cc: all counsel) (dlt) (Entered: 07/09/2001)
90 LETTER from Mary Ann Stackhouse re: proposed settlement agreement. (dlt) (Entered: 07/09/2001)
91 LETTER from Arthur S. Masker re: proposed settlement agreement. (dlt) (Entered: 07/09/2001)
92 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 7/6/01 from Ira P. Lustbader w/ attachments; a letter dated 7/10/01 from Ira P. Lustbader w/ attachments; and a letter dated 7/12/01 from Jeffrey K. Powell w/ attachments. Clerk is directed to file the letters and attachments as part of the record in this case. Clerk is further directed to furnish counsel w/ a copy of the letters and attachments and this Order. EOD 7/16/01 (cc: all counsel) (dlt) (Entered: 07/16/2001)
93 LETTER from Ira Lustbader, attorney for pltfs re: letter from a child in foster care in response to the ntc published concerning the Brian A. Settlement Agreement. (dlt) (Entered: 07/16/2001)
94 LETTER from Ira Lustbader, attorney for pltfs re: Two letters from Kimisha Edwards in response to ntc of the Settlement Agreement. (w/ attachments) (dlt) (Entered: 07/16/2001)
95 LETTER from Jeffrey Powell, attorney for pltfs re: Letter from Gordon Bonnyman of the TN Justice Center in response to Ntc of Settlement Agreement. (w/ attachments) (dlt) (Entered: 07/16/2001)
96 MOTION by pltfs for approval of class action settlement . (dlt) (Entered: 07/17/2001)
97 MEMORANDUM by pltfs in support of motion for approval of class action settlement [96−1]. (w/ att'd exhibits A−D) (dlt) (Entered: 07/17/2001)
98 MOTION by defts for approval of class action settlement . (dlt) (Entered: 07/17/2001)
99 MEMORANDUM of Law by defts in support of motion for approval of class action settlement [98−1]. (w/ attachments) (dlt) (Entered: 07/17/2001)
100 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 7/13/01 from Elizabeth C. Driver w/ attachments. Clerk is directed to file the letter and attachments as part of the record. Clerk is further directed to furnish counsel w/ a copy of the letter and attachments and this Order. EOD 7/17/01 (cc: all counsel) (dlt) (Entered: 07/17/2001)

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07/16/2001 07/16/2001 07/16/2001 07/19/2001 07/19/2001 07/20/2001
07/20/2001 07/20/2001 07/26/2001 07/26/2001
07/26/2001
07/27/2001
08/02/2001
08/02/2001 08/27/2001 08/27/2001 08/27/2001 08/27/2001

101 LETTER from Elizabeth C. Driver, attorney for defts, re: two letters from a child in foster care in response to the ntc concerning the Brian A. settlement agreement. (w/ att'd letters) (dlt) (Entered: 07/17/2001)
102 MOTION by pltfs in case 3:94−0595 and pltfs in 3:98−0168 for leave to file objection to proposed settlement . (w/ att'd proposed objection to settlement) (dlt) (Entered: 07/17/2001)
103 CERTIFICATE of Counsel by Gordon Bonnyman (dlt) (Entered: 07/17/2001)
104 ORDER by Judge Todd J. Campbell granting motion for leave to file objection to proposed settlement [102−1]. EOD 7/19/01 (cc: all counsel) (dlt) (Entered: 07/19/2001)
105 LIMITED OBJECTIONS to Proposed Settlement Agreement by pltfs in cases 3:94−0595 and 3:98−0168. (w/ attachments) (dlt) (Entered: 07/19/2001)
106 ORDER by Judge Todd J. Campbell: Court is in receipt of a letter dated 7/19/01 from Randal Lea. Clerk is directed to file the letter as part of the record in this case. Clerk is further directed to furnish counsel w/ a copy of the letter and this Order. EOD 7/20/01 (cc: all counsel) (dlt) (Entered: 07/20/2001)
107 LETTER from Randal Lea, President, Board of Directors TN Association for Child Care, re: ntc of settlement. (dlt) (Entered: 07/20/2001)
108 TRANSCRIPT filed of proceedings−fairness hearing before Judge Campbell on 7/20/01. (dlt) (Entered: 07/23/2001)
109 ORDER by Judge Todd J. Campbell of Settlement Agreement. Details w/in the order. EOD 7/27/01 (cc: all counsel) (dlt) (Entered: 07/27/2001)
110 STIPULATED MODIFICATION by Judge Todd J. Campbell of settlement agreement [109−1]. Parties agree to modify the Settlement agreement by deleting the test of Section V.A. in its entirety and replacing it with different language, details found in this order. EOD 7/27/01 (cc: all counsel) (dlt) (Entered: 07/27/2001)
112 ORDER by Judge Todd J. Campbell: Hearing held on 7/20/01 . Granting motions for approval of class action settlement [98−1] and for approval of class action settlement [96−1]. Contemporaneously herewith, the Court has approved and filed the Settlement Agreement, a Stipulated Modification of Settlement Agrement regarding Section V.A. and an additional Stipulated Modication of Settlement Agreement regarding Section XIII.A. Terminating case . EOD 7/27/01 (cc: all counsel) (dlt) (Entered: 07/27/2001)
111 STIPULATED MODIFICATION by Judge Todd J. Campbell of Settlement Agreement [109−1]. Parties agree to modify the settlement by deleting the first sentence of Setion XIII.A. in its entirety and replacing it w/ the following: DCS shall develop & implement polices & procedures by which it can maximize funds available to it through Titles IV−B and IV−E of the Adoption Assistance and Child Welfare Act of 1980. EOD 7/27/01 (cc: all counsel) (dlt) (Entered: 07/27/2001)
113 ORDER by Judge Todd J. Campbell: The Court is in receipt of a letter dated 8/1/01 from E. Candis Pelfrey. The Clerk is directed to file the letter as part of the record in this case and furnish counsel w/a copy of the letter and this order. (cc: all counsel w/copy of letter) (EOD 8/3/01) (rls) (Entered: 08/03/2001)
114 LETTER dated 8/1/01 from E. Candis Pelfrey re: TN Foster Care System and DHS (rls) (Entered: 08/03/2001)
115 MOTION by pltfs for attorney fees and expenses . (w/ att'd exhibits A1−12, B1−4 in Vols 1−3) (dlt) (Entered: 08/28/2001)
116 AFFIDAVIT of Marcia Robinson Lowry re [115−1]. (w/ attachments 1−4) (dlt) (Entered: 08/28/2001)
117 DECLARATION by pltfs of Richard Emery [115−1]. (w/ att'd exhibits A−B) (dlt) (Entered: 08/28/2001)
118 DECLARATION by pltfs of Dean Hill Rivkin re [115−1]. (w/ att'd exhibit A) (dlt) (Entered: 08/28/2001)

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08/27/2001 08/27/2001 08/27/2001 08/27/2001 09/11/2001 09/13/2001 09/19/2001
09/19/2001 12/10/2001 12/12/2001 12/13/2001
12/13/2001 01/10/2002 01/18/2002 01/23/2002 01/24/2002 02/22/2002 02/22/2002 02/25/2002
03/11/2002

119 DECLARATION by pltfs of S. Dawn Coppock re [115−1]. (w/ att'd exhibit A) (dlt) (Entered: 08/28/2001)
120 AFFIDAVIT of David L. Raybin re [115−1] (dlt) (Entered: 08/28/2001)
121 DECLARATION by pltfs of Wallace W. Dietz re [115−1]. (dlt) (Entered: 08/28/2001)
122 MEMORANDUM by pltf in support of motion for attorney fees and expenses [115−1]. (w/ att'd exhibits 1−2) (dlt) (Entered: 08/28/2001)
123 MOTION by defts for extension of time until 12/10/01 to file any objection to the pltfs' mtn for attorney's fees and expenses . (dlt) (Entered: 09/12/2001)
124 ORDER by Judge Todd J. Campbell granting motion for extension of time until 12/10/01 to file any objection to the pltfs' mtn for attorney's fees and expenses [115−1] [123−1] (cc: all counsel) (EOD 9/14/01) (jb) (Entered: 09/14/2001)
125 ORDER by Judge Todd J. Campbell: The Court is in receipt of a letter dated 9/18/01 from Ira P. Lustbader, counsel for pltfs. Clerk shall file the letter as part of the record. All requests in the letter are denied because such requests are not filed by proper mtn. EOD 9/19/01 (cc: all counsel) (gi) (Entered: 09/19/2001)
126 LETTER from pltfs' counsel, Ira P. Lustbader, dated 9/18/01, re defts' mtn for a 90 day extension of time to respond to pltfs' mtn for attys' fees and expenses (gi) (Entered: 09/19/2001)
127 OBJECTIONS by defts to pltfs' mtn for attorney's fees and expenses [115−1]. (dlt) (Entered: 12/11/2001)
128 MOTION by pltfs for leave to file a reply to defts' ntc of objection to pltfs' mtn for attorneys' fees and expenses . (w/ att'd proposed reply) (dlt) Modified on 12/13/2001 (Entered: 12/13/2001)
129 ORDER by Judge Todd J. Campbell granting motion for leave to file a reply to defts' ntc of objection to pltfs' mtn for attorneys' fees and expenses [128−1] and the Clerk is directed to docket and file the reply. EOD 12/14/01 (cc: all counsel) (dlt) (Entered: 12/14/2001)
130 REPLY by pltf to response to motion for attorney fees and expenses [115−1]. (dlt) (Entered: 12/14/2001)
131 ORDER by Judge Todd J. Campbell: State defts' request to extend ddl to file a brief in response to pltf's mtn for attorneys' fees and expenses [115−1] to 1/18/02 is granted. EOD 1/11/02 (cc: all counsel) (dlt) (Entered: 01/11/2002)
132 RESPONSE by defts to motion for attorney fees and expenses [115−1]. (w/ attachments) (dlt) (Entered: 01/22/2002)
133 MOTION by pltfs for leave to reply to defts' response to pltfs' mtn for attorneys' fees and expenses . (dlt) (Entered: 01/24/2002)
134 ORDER by Judge Todd J. Campbell granting motion for leave to reply to defts' response to pltfs' mtn for attorneys' fees and expenses [133−1]. Pltfs shall have until 2/22/02 to file any reply. EOD 1/24/02 (cc: all counsel) (dlt) (Entered: 01/24/2002)
135 REPLY MEMORANDUM by pltfs to response to motion for attorney fees and expenses [115−1]. (w/ att'd exhibit 1) (dlt) (Entered: 02/25/2002)
136 AFFIDAVIT of Gail Vaughn Ashworth re [135−1]. (the afdt is not notarized) (dlt) (Entered: 02/25/2002)
137 ORDER by Judge Todd J. Campbell granting in part and denying in part pltfs' mtn for attorney fees and expenses [115−1]. Pltfs are ordered to submit an amended petition for fees & expenses by 3/11/02. Defts may respond to amended request on or before 3/25/02. EOD 2/26/02 (cc: all counsel) (mk) (Entered: 02/26/2002)
138 MEMORANDUM by pltf in support of pltfs' amended request for attorneys' fees and expenses from order [137−1]. (w/ att'd exhibits A−B) (dlt) (Entered: 03/12/2002)

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03/11/2002 03/25/2002 04/04/2002
04/10/2002 04/19/2002
05/20/2002 05/20/2002 05/23/2002 05/23/2002 06/05/2002 06/05/2002 06/05/2002 06/06/2002 06/10/2002 06/10/2002 06/17/2002 06/19/2002 06/21/2002 07/01/2002

139 AFFIRMATION OF Marcia Robinson Lowry by pltfs in support of pltfs' amended request for attorneys' fees and expenses [138−1]. (w/ att'd exhibits 1−7) (dlt) (Entered: 03/12/2002)
140 RESPONSE by defts to pltfs' amended request for attorney's fees and expenses [139−1]. (w/ att'd exhibit A) (dlt) (Entered: 03/26/2002)
141 ORDER by Judge Todd J. Campbell: Defts' general objections to the hourly rates and overall fees are overruled. Court finds however, that defts' specific objections to the amended request well−taken. Pltf shall amend their request for attorneys' fees and expenses to deduct the specific entries identified in defts' response and shall submit a second amended request by 4/12/02. EOD 4/4/02 (cc: all counsel) (dlt) (Entered: 04/04/2002)
142 SECOND AMENDED by pltf to request for attorneys' fees and expenses [115−1]. (w/ att'd exhibits 1−3) (dlt) (Entered: 04/11/2002)
143 ORDER by Judge Todd J. Campbell granting second amended request for attorneys' fees and expenses [142−1]. Pltfs are awarded a total of $1,435,380.08 in reasonable attorneys' fees and $88,977.91 in out−of−pocket expenses, plus interest accruing on these amounts since 7/27/01, the date upon which the settlement agreement was signed. EOD 4/19/02 (cc: all counsel) (dlt) Modified on 05/22/2002 (Entered: 04/19/2002)
144 NOTICE OF APPEAL by defts Donald Sundquist & George W. Hattaway from Dist. Court decision [143−1] (af) (Entered: 05/22/2002)
145 RECEIVED filing fee from State Defts in the amt of $105, receipt no. 85909 (re: docket entry no. 144) (af) (Entered: 05/22/2002)
146 LETTER from Clerk to all counsel of record regarding designation of the record on appeal (sent counsel docket sheet) (af) Modified on 05/23/2002 (Entered: 05/23/2002)
Short Record on Appeal sent to 6CCA re [144−1] (af) (Entered: 05/23/2002)
147 DESIGNATION OF THE RECORD ON APPEAL by defts Donald Sundquist & George W. Hattaway (af) (Entered: 06/06/2002)
148 MOTION by defts for stay pending appeal from the order awarding atty's fees & waiver of supersedeas bond (af) (Entered: 06/10/2002)
149 MEMORANDUM OF LAW by defts in support of motion for stay pending appeal from the order awarding atty's fees & waiver of supersedeas bond [148−1] (af) (Entered: 06/10/2002)
150 RESPONSE IN OPPOSITION by pltfs to motion for stay pending appeal from the order awarding atty's fees & waiver of supersedeas bond [148−1] (af) (Entered: 06/10/2002)
TRANSCRIPT Order Form submitted by state defts and marked: Transcript is unnecessary for appeal purposes (af) (Entered: 06/11/2002)
151 NOTIFICATION by 6th CCA of receipt of short record & assignment of appellate case number 02−5666 (af) (Entered: 06/11/2002)
152 DESIGNATION of Record on Appeal by pltfs (gi) (Entered: 06/18/2002)
153 RESPONSE by pltfs in opposition to motion for stay pending appeal from the order awarding atty's fees & waiver of supersedeas bond [148−1] (w/attached exhibits A−C) (gi) (Entered: 06/20/2002)
154 ORDER by Judge Todd J. Campbell granting motion for stay pending appeal from the order awarding atty's fees & waiver of supersedeas bond [148−1]. EOD 6/24/02 (cc: all counsel) (gi) (Entered: 06/24/2002)
155 ORDER by Judge Todd J. Campbell: In light of the recent partial government shutdown in the State of Tennessee, counsel for the parties shall appear for a status conference set for 9:00 a.m. on 7/3/02 . EOD 7/1/02 (cc: all counsel) (dlt) (Entered: 07/01/2002)

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07/03/2002
07/03/2002
07/03/2002 07/08/2002 03/04/2003 03/14/2003 03/14/2003 03/14/2003 03/19/2003 11/06/2003 11/18/2003 11/18/2003 11/18/2003 11/19/2003 11/20/2003 11/20/2003 11/20/2003 11/21/2003 11/21/2003

156 CLERK'S RESUME: Status conference held on 7/3/02 . Status conference held. Parties were allowed time to update the court on the current budget's affect on the settlement agreement in the matter. Order to enter. See att'd, Senate Bill #3256 submitted by the pltfs as an exhibit to this hearing. C/R: Jim Spence (dlt) (Entered: 07/03/2002)
157 ORDER by Judge Todd J. Campbell: Status conference held on 7/3/02. Parties shall keep the Court advised of any new developments concerning the State budget & appropriations issues which could adversely affect compliance w/ the Settlement Agreement in this case. Court will re−evaluate the issues next week& determine whether another status conference is necessary. Counsel for the parties jointly shall notify the Monitor, Shiela Agneil, that she will be required to appear at any futher status conference in this matter. Clerk shall serve the Monitor w/ a copy of this order and all further orders in this case. EOD 7/03/02 (cc: all counsel) (dlt) (Entered: 07/03/2002)
158 TRANSCRIPT filed of proceedings − status conference before Judge Campbell on 7/3/02. C/R: James Spence. (dlt) (Entered: 07/03/2002)
159 NOTICE by defts that the TN State Government partial shutdown has ended (gi) (Entered: 07/09/2002)
160 NOTICE by pltfs of filing Interim Progress Report compiled by Federal Court Monitor with attached report (mk) (Entered: 03/05/2003)
161 MOTION by pltfs to place originally filed appendices under seal (mk) (Entered: 03/17/2003)
162 NOTICE by pltfs of filing redacted version of appendices to Interim Progress Report (which were originally filed 3/4/03) (mk) (Entered: 03/17/2003)
163 AFFIDAVIT of David L. Raybin re [161−1] (mk) (Entered: 03/17/2003)
164 ORDER by Judge Todd J. Campbell granting motion to place originally filed appendices under seal [161−1] EOD 3/19/03 (cc: all counsel) (mk) (Entered: 03/19/2003)
165 NOTICE by pltfs of filing Settlement Agreement Compliance Report for September 1, 2001 through July 31, 2003 dated November 1, 2003 along with Appendices (3 vols in binders) (mk) (Entered: 11/06/2003)
166 MOTION by pltf Brian A. for attorney Douglas C. Gray to appear pro hac vice (fee paid 11/21/03) (mk) Modified on 11/21/2003 (Entered: 11/19/2003)
167 CERTIFICATE of Good Standing filed by Douglas C. Gray from Southern District of New York (mk) (Entered: 11/19/2003)
PROPOSED Order granting mtn of Douglas C. Gray for admission pro hac vice (mk) (Entered: 11/19/2003)
168 LETTER from Clerk to Douglas C. Gray re: $75.00 fee for pro hac vice motion (fee paid on 11/21/03) (af) Modified on 11/21/2003 (Entered: 11/19/2003)
169 MOTION by pltfs for contempt of consent decree and further remedial relief (mk) (Entered: 11/20/2003)
170 AFFIDAVIT of Marcia Robinson Lowry re [169−1] (mk) (Entered: 11/20/2003)
171 MOTION by pltfs for leave to file memorandum in excess of 25 pages (with attached proposed memorandum and Appendices A−X) (mk) (Entered: 11/20/2003)
172 ORDER by Judge Todd J. Campbell granting motion for attorney Douglas C. Gray to appear pro hac vice [166−1] for pltfs. EOD 11/21/03 (cc: all counsel) (mk) (Entered: 11/21/2003)
173 ORDER by Judge Todd J. Campbell setting hearing on motion for contempt of consent decree and further remedial relief [169−1] for 9:00 am on 1/2/04. EOD 11/21/03 (cc: all counsel) (mk) (Entered: 11/21/2003)

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11/21/2003
11/21/2003 11/24/2003 11/26/2003 12/01/2003 12/04/2003 12/04/2003
12/10/2003 12/10/2003 12/10/2003 12/10/2003 12/10/2003 12/17/2003 12/23/2003 12/23/2003 12/29/2003
12/29/2003
01/13/2004

174 ORDER by Judge Todd J. Campbell granting pltf's mtn for leave to file memorandum in excess of 25 pages [171−1]. Clerk directed to file the pltfs' memorandum in support with appendix 1 and 2. Defts' memorandum in response to pltfs' mtn for contempt of Consent Decree may likewise exceed 25 pages. EOD 11/21/03 (cc: all counsel) (mk) (Entered: 11/21/2003)
175 MEMORANDUM by pltfs in support of motion for contempt of consent decree and further remedial relief [169−1] with attached Appendices A−X (in 2 volumes) (mk) (Entered: 11/21/2003)
178 INFORMATION COPY from 6th CCA dated 11/21/03: affirming the jgm of the district court (mk) (Entered: 12/01/2003)
176 MOTION by pltf Brian A. to set a status conference . (mk) (Entered: 12/01/2003)
177 ORDER by Judge Todd J. Campbell granting motion to set a status conference [176−1]. The Court will hold a status conference set for 1:00 p.m. on 12/4/03 in the Courtroom No. A−826. EOD 12/1/03 (cc: all counsel) (dlt) (Entered: 12/01/2003)
179 CLERK'S RESUME of Status conference held 12/4/03 at 1:00 . Order to enter. C/R: Jim Spence (mk) (Entered: 12/05/2003)
180 ORDER by Judge Todd J. Campbell re: status conference held 12/4/03 A hearing on pltf's mtn for contempt of consent decree and further remedial relief [169−1] is set for 9:00 a.m. on 1/2/04 and if needed, to continue on 1/5/04 at 9:00. Parties to exchange & file with court before 12/30/03 witness, exhibit lists, affidavits, stipulations & mtns in limine and other pre−hearing mtns. Parties to make every effort to respond to these documents before hrg begins. Pg. limitation on briefs & responses is waived. EOD 12/5/03 (cc: all counsel) (mk) (Entered: 12/05/2003)
181 RESPONSE by defts to pltf's mtn for contempt and further remedial relief [169−1] (mk) (Entered: 12/11/2003)
182 NOTICE by deft George W. Hattaway of filing declaration of Tam Gordon, declaration of Kenneth Steverson, and declaration of Mary Meador (with attachments) (mk) (Entered: 12/11/2003)
183 DECLARATION of Tam Gordon re [181−1] with attachment (mk) (Entered: 12/11/2003)
184 DECLARATION of Kenneth Steverson re [181−1] with attachments (mk) (Entered: 12/11/2003)
185 DECLARATION of Mary Meador re [181−1] with attachments (mk) (Entered: 12/11/2003)
186 MANDATE from 6th CCA dated 12/15/03 affirming the decision of the District Court [178−1] (mk) (Entered: 12/18/2003)
187 REPLY MEMORANDUM by pltfs to response to motion for contempt of consent decree and further remedial relief [169−1] (w/ att'd exhibit 1) (vh) (Entered: 12/23/2003)
188 REPLY AFFIDAVIT of Marcia Robinson re [187−1], re [169−1] (w/ att'd exhibits A−G) (vh) (Entered: 12/23/2003)
189 CLERK'S RESUME: Hearing held 12/29/03. A hearing was held upon request of the ptys. A proposed stipulation of settlement of contempt motion was submitted to the court for approval. Order to enter as the stipulation was approved. C/R: Jim Spence (jb) (Entered: 12/30/2003)
190 STIPULATION approved by Judge Todd J. Campbell of settlement of contempt motion [169−1]. Pltfs are entitled to fees and costs with regard to their motion and this resultant Stipulation. Those fees and costs will be included in a separate motion for post−judgment monitoring and enforcement activities to be submitted separately to the Court. (cc: all counsel) (EOD 12/30/03) (jb) (Entered: 12/30/2003)
191 JOINT MOTION to extend time for filing pltfs' mtn for attorneys' fees & expenses . (w/ att'd proposed order) (dlt) (Entered: 01/13/2004)

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01/13/2004 192 ORDER by Judge Todd J. Campbell granting motion to extend time until 2/13/04 w/in which to file pltfs' mtn for attorneys' fees & expenses [191−1]. EOD 1/14/04 (cc: all counsel) (dlt) (Entered: 01/14/2004)

01/16/2004 193 TRANSCRIPT filed of proceedings−settlement announcement held on 12/29/03 before Judge Campbell. (dlt) (Entered: 01/20/2004)

02/10/2004 194 JOINT MOTION to extend time for filing pltfs' mtn for attorneys' fees & expesnses . (w/ att'd proposed order) (dlt) (Entered: 02/10/2004)

02/11/2004

195 ORDER by Judge Todd J. Campbell granting motion to extend time for filing pltfs' mtn for attorneys' fees & expesnses [194−1]. Defts' appeal to the Sixth Circuit of this Court's award of pltfs' attorneys' fees & costs is extended to 3/12/04. Any mtn for attorneys fees & expenses is referred to the Magistrate Judge for a R&R. EOD 2/11/04 (cc: all counsel) (dlt) (Entered: 02/11/2004)

03/11/2004 196 JOINT MOTION to extend time to file mtn for attorneys' fees & expenses . (dlt) (Entered: 03/12/2004)

03/16/2004 197 ORDER by Judge Todd J. Campbell: Motion to extend time until 3/30/04 w/in which to file mtn for attorneys' fees & expenses [196−1] is granted. EOD 3/16/04 (cc: all counsel) (dlt) (Entered: 03/16/2004)

03/30/2004 198 JOINT MOTION to extend time to file mtn for attorneys' fees & expenses . (w/ att'd exhibit A and proposed order) (dlt) (Entered: 03/30/2004)

03/31/2004 199 ORDER by Judge Todd J. Campbell granting motion to extend time to file mtn for attorneys' fees & expenses [198−1]. The time is extended to 4/1/04. EOD 3/31/04 (cc: all counsel) (dlt) (Entered: 03/31/2004)

03/31/2004 200 MOTION by pltfs for approval of pltfs' attorney fees & expenses . (dlt) (Entered: 04/01/2004)

03/31/2004 201 AFFIDAVIT of Marcia Robinson Lowry re [200−1]. (dlt) (Entered: 04/01/2004)

03/31/2004 202 AFFIDAVIT of David L. Raybin re [200−1]. (dlt) (Entered: 04/01/2004)

03/31/2004 203 APPENDIX filed by pltf of exhibits in support of mtn for approval of pltfs' attorneys' fees & expenses [200−1]. (w/ att'd exhibits A−U) (dlt) (Entered: 04/01/2004)

03/31/2004 204 MOTION by pltf for leave to file memorandum in excess of 25 pages . (w/ att'd proposed memorandum in support of mtn for approval of pltfs' attorneys' fees & expenses) (dlt) (Entered: 04/01/2004)

03/31/2004

PROPOSED Agreed Order approving & directing distribution of legal ntc of mtn for approval of pltfs' attorneys' fees & expenses. (w/ att'd proposed legal ntc) (dlt) (Entered: 04/01/2004)

04/02/2004 205 ORDER by Judge Todd J. Campbell: The Court will hold a hearin on pltfs' motion for approval of pltfs' attorney fees & expenses [200−1] at 1:00 p.m. on 4/30/04. EOD 4/5/04 (cc: all counsel) (dlt) (Entered: 04/05/2004)

04/02/2004

206 AGREED ORDER by Judge Todd J. Campbell: Approving & directing distribution of legal ntc of mtn for approval of pltfs' attorneys' fees & expenses. All provisions of the att'd ntc to class members are hereby incorporated by reference & made part of this Order as if fully set forth herein. (w/ att'd approved legal ntc of mtn for approval of pltfs' attorneys' fees & expenses) (cc: all counsel) (EOD 4/5/04) (dlt) Modified on 04/05/2004 (Entered: 04/05/2004)

04/02/2004

207 ORDER by Judge Todd J. Campbell granting motion for leave to file memorandum in excess of 25 pages [204−1]. The Clerk is directed to file pltfs' memorandum in support of mtn for approval of pltfs' attorneys' fees & expenses. EOD 4/5/04 (cc: all counsel) (dlt) (Entered: 04/05/2004)

04/02/2004 208 MEMORANDUM by pltf in support of motion for approval of pltfs' attorney fees & expenses [200−1]. (dlt) Modified on 04/05/2004 (Entered: 04/05/2004)

04/19/2004 209 LETTER from Lisa Z. Espy re: In response to ntc concerning attorney fees, my only response &/or comment is that attorneys from New York were approved to received more per hour than the Tennessee attorneys. I believe the cap should be the most paid
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04/30/2004 04/30/2004
05/05/2004 06/10/2004 06/15/2004
06/23/2004 06/24/2004
08/16/2004 08/19/2004 10/26/2004 11/24/2004 11/24/2004 11/24/2004 12/03/2004 12/08/2004 12/09/2004 12/09/2004

to the Tennessee attorneys or $250.00 per hour. (dlt) (Entered: 04/20/2004)
210 CLERK'S RESUME: Hearing on motion for approval of pltfs' attorney fees expenses [200−1] was held on 4/30/04. The mtn was granted. Order to enter. C/R: Jim Spence (dlt) (Entered: 04/30/2004)
211 ORDER by Judge Todd J. Campbell: For the reasons stated from the bench at the hearing, the motion for approval of pltfs' attorney fees & expenses [200−1] is granted. Pltfs' counsel is awarded $771,498.78 in attorneys' fees & $66,728.29 in out−of−pocket litigation expenses for legal service from 7/27/01 to 12/29/03. EOD 4/30/04 (cc: all counsel) (dlt) (Entered: 04/30/2004)
212 TRANSCRIPT filed of proceedings − mtn re attorneys' fees & expenses before Judge Campbell held on 4/30/04. C/R: Jim Spence. (dlt) (Entered: 05/05/2004)
213 MOTION (PETITION) by Robert Brandon for stay order prohibiting the Department of Children Service for the State of Tennessee from moving a child in foster care . (w/ attachment) (dlt) (Entered: 06/14/2004)
214 ORDER by Judge Todd J. Campbell: The Court is in receipt of a petition for stay order [213−1] filed by Robert L. Brandon dated 6/9/04. Clerk is directed to serve a copy of this Order & the Petition on all counsel of record. EOD 6/15/04 (cc: all counsel) counsel) (dlt) (Entered: 06/15/2004)
215 PARTIES JOINT RESPONSE to motion for stay order prohibiting the Department of Children Service for the State of Tennessee from moving child in foster care [213−1]. (dlt) (Entered: 06/23/2004)
216 ORDER by Judge Todd J. Campbell: The motion for stay order prohibiting the Department of Children Service for State of Tennessee from moving a child in foster care [213−1] is denied for the reasons stated in the parties' joint response (DE# 213). EOD 6/24/04 (cc: all counsel) (dlt) (Entered: 06/24/2004)
217 JOINT MOTION for Court approval of the implementation plan (w/attached exhibits 1−4 & proposed order) (gi) (Entered: 08/17/2004)
218 ORDER by Judge Todd J. Campbell granting joint motion for Court approval of the implementation plan [217−1]. (EOD 8/19/04) (cc: all counsel) (km) (Entered: 08/19/2004)
219 NOTICE by pltfs of filing the Annual DCS Case File Review Report the period ending 12/31/03 submitted by the Technical Assistance Committee in the case of Brian A. v. Bredesen 10/25/04. (w/ attachment) (dlt) (Entered: 10/26/2004)
220 MOTION by Class of Minors to intervene pursuant to FRCP Rule 24(a)(2) or to intervene by permission under Rule 24(b)(2) or as amicus curiae (gi) (Entered: 11/29/2004)
221 MEMORANDUM by Class of Minors in support of motion to intervene pursuant to FRCP Rule 24(a)(2) [220−1], or to intervene by permission under Rule 24(b)(2) [220−2], or as amicus curiae [220−3] (gi) (Entered: 11/29/2004)
222 DECLARATION of Dr. Michael A. S. Guth re [220−1] [220−2] [220−3] (w/attached exhibit A) (gi) (Entered: 11/29/2004)
223 MOTION by pltf Brian A. for attorney Corene Thaedra Kendrick to appear pro hac vice . (w/ attachment)(fee paid on 12/3/04) (dlt) (Entered: 12/06/2004)
224 LETTER from Clerk to Corene Kendrick re: filing an original certificate of good standing. (dlt) (Entered: 12/08/2004)
225 MOTION by Dept Children's Serv to extend time in which to respond to the mtn to intervene . (dlt) (Entered: 12/09/2004)
226 RESPONSE (MEMORANDUM OF LAW IN OPPOSITION) by pltfs to motion to intervene pursuant to FRCP Rule 24(a)(2) [220−1] & to intervene by permission under Rule 24(b)(2) [220−2]. (dlt) (Entered: 12/10/2004)

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12/09/2004 227 AFFIDAVIT of Douglas C. Gray re [226−1]. (w/ att'd exhibits 1−3) (dlt) (Entered: 12/10/2004)

12/15/2004 228 LETTER from intervenor Class of Minors re: Local Rule 1 Letter. (dlt) (Entered: 12/15/2004)

12/21/2004 229 CERTIFICATE of Good Standing filed by pltf Brian A. for Corene Thaedra Kendrick from the USDC/CDCA (dlt) (Entered: 12/21/2004)

12/22/2004 230 ORDER by Judge Todd J. Campbell granting motion for attorney Corene Thaedra Kendrick to appear pro hac vice [223−1] by pltfs (cc: all counsel) (EOD 12/22/04) (jb) (Entered: 12/22/2004)

12/23/2004 233 MOTION by intervenor Class of Minors for attorney Michael A. S. Guth, Ph.D., J.D. to appear pro hac vice . (w/ att'd copy of certificate of good standing)(fee paid on 12/23/04) (dlt) (Entered: 12/29/2004)

12/23/2004 234 MOTION by intervenor Class of Minors for leave to file a reply memorandum to the mtn to intervene . (w/ att'd proposed reply) (dlt) (Entered: 12/29/2004)

12/28/2004 231 MOTION by pltfs for approval of pltfs' attys' fees and expenses (w/attached proposed order) (km) (Entered: 12/28/2004)

12/28/2004 232 AFFIDAVIT of Marcia Robinson Lowry re [231−1] (w/attached exhibits A−N) (km) (Entered: 12/28/2004)

12/29/2004 235 LETTER from Clerk to Michael Guth re: filing original certificate of good standing. (dlt) (Entered: 12/29/2004)

12/30/2004 236 NOTICE by pltfs of filing Judge Nixon's Order granting limited intervention as Exhibit 2 to pltfs' 12/9/04 opposition to mtn to intervene by Michael A.S. Guth. (w/ attachment) (dlt) (Entered: 12/30/2004)

01/11/2005 237 CERTIFICATE of Good Standing filed by pltfs for Michael Guth from the USDC/EDTN. (dlt) (Entered: 01/12/2005)

01/13/2005

238 ORDER by Judge Todd J. Campbell: Motion to extend time in which to respond to the mtn to intervene [225−1] is granted and Tennessee Department of Children's Services shall have until 1/28/05 to respond to the motion to intervene [220−1] [220−2]. Motion for attorney Michael A. S. Guth, Ph.D., J.D. to appear pro hac vice [233−1] by pltfs & intervenor is granted. Motion for leave to file a reply memorandum to the mtn to intervene [234−1] is granted and the Clerk is directed to fiel the Memorandum att'd thereto. EOD 1/13/05 (cc: all counsel) (dlt) (Entered: 01/13/2005)

01/13/2005 239 REPLY by intervenor to response to motion to intervene [220−1] [220−2]. (w/ attachments) (dlt) (Entered: 01/13/2005)

01/28/2005 240 RESPONSE IN OPPOSITION by Dept Children's Serv to motion to intervene pursuant to FRCP Rule 24(a)(2) [220−1] & to intervene by permission under Rule 24(b)(2) [220−2]. (dlt) (Entered: 01/31/2005)

02/04/2005

241 ORDER by Judge Todd J. Campbell: The Court having duly considered all papers submitted in conection w/ pltfs' mtn for reimbursement of attys' fees and expenses [231−1], & for the foregoing reasons, the Court hereby grants pltfs' mtn for $113,538.30 in attorneys' fees & $7,667.00 in out−of−pocket expenses. EOD 2/4/05 (cc: all counsel) (dlt) (Entered: 02/04/2005)

02/04/2005 242 MEMORANDUM OF THE COURT (cc: all counsel)(EOD 2/4/05) (dlt) (Entered: 02/04/2005)

02/04/2005 243 ORDER by Judge Todd J. Campbell: For the reasons stated in the accompanying Memorandum, the motion to intervene [220−1][220−2][220−3] is denied in its entirety. EOD 2/4/05 (cc: all counsel) (dlt) (Entered: 02/04/2005)

04/13/2005 244 NOTICE by pltfs & defts of filing the "Monitoring Report of the Technical Assistance Committee in the case of Brian A. v. Bredesen" submitted on 4/13/05. (w/ att'd monitoring report) (dlt) (Entered: 04/13/2005)

01/23/2006 245 NOTICE of Filing by Donald Sundquist, George W. Hattaway of the TAC Monitoring Report issued Jan. 19, 2006 (Attachments: # 1 Exhibit 1)(Driver, Elizabeth) Modified
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02/13/2006 02/13/2006 02/24/2006 02/24/2006 02/28/2006 03/01/2006
03/02/2006
03/02/2006
04/04/2006 07/07/2006 12/07/2006 12/07/2006
12/11/2006 12/22/2006 01/25/2007 01/25/2007 01/25/2007

Text on 1/23/2006 (dt). (Entered: 01/23/2006)
246 Sealed Order (dt) (Entered: 02/13/2006)
247 Sealed Document (dt) (Entered: 02/13/2006)
248 NOTICE of Change of Address by Jacqueline B. Dixon (Dixon, Jacqueline) (Entered: 02/24/2006)
249 STIPULATION AND PROPOSED ORDER EXTENDING MONITORING by Brian A.(Dixon, Jacqueline) Modified Text on 2/27/2006 (dt). (Entered: 02/24/2006)
250 ORDER: Stipulation extending monitoring 249 is approved. Signed by Judge Todd J. Campbell on 2/28/06. (dt) (Entered: 02/28/2006)
251 MOTION for Attorney Fees by Brian A.. Responses due by 3/20/2006 (Attachments: # 1 Proposed Order # 2 Affidavit# 3 Exhibit A# 4 Exhibit B part 1, pages 1−40# 5 Exhibit B part 2, pages 41−80# 6 Exhibit B part 3, pages 81−92, 1−14, 1−4# 7 Exhibit C# 8 Exhibit D# 9 Exhibit E)(Dixon, Jacqueline) (Entered: 03/01/2006)
Note to Filer re: Docket Entry NO. 251, Motion for Attorney fees is a scanned document. Scanning should be used only for documents that do not exist in electronic format on your computer. Examples of documents that may be scanned are police reports, executed contracts, or documents that contain signatures other than that of the filing user (see section 8 − "Signatures" of our Administrative Practices and Procedures for Electronic Case Filing). Also, the affidavit, attached as an exhibit, needs to be filed as a separate document in the future. This pleadings Does Not need to be refiled. (dt) (Entered: 03/02/2006)
252 ORDER granting 251 Motion for Attorney Fees. The Court having duly considered all papers submitted in connection with Plaintiffs' motion for reimbursement of attorneys' fees and expenses, the Court hereby grants Plaintiffs' motion for $146,963.37 in attorneys' fees and $10,345.50 in out−of−pocket expenses. Signed by Judge Todd J. Campbell on 3/2/06. (dt) (Entered: 03/02/2006)
253 NOTICE of Filing by Donald Sundquist, George W. Hattaway, Department of Children's Services (Attachments: # 1 Period II Data Report Submitted by the TAC)(Driver, Elizabeth) (Entered: 04/04/2006)
254 Letter from Daniel Howard re: Mr. Howard's change of address. (dt) (Entered: 07/13/2006)
255 MOTION for Attorney Fees and Expenses by Brian A.. (Raybin, David) (Entered: 12/07/2006)
256 AFFIDAVIT of Marcia Robinson Lowry, Esq. in Support re 255 MOTION for Attorney Fees and Expenses filed by Brian A.. (Attachments: # 1 Exhibit Chart Summarizing Fees# 2 Exhibit Timeslips# 3 Exhibit Expenses Chart# 4 Exhibit Attorney Resumes# 5 Proposed Order Proposed Order)(Raybin, David) Modified Text on 12/8/2006 (dt). (Entered: 12/07/2006)
257 ORDER granting 255 Motion for $130,448.05 in attorneys' fees and $8,897.71 in out−of−pocket expenses. Signed by Judge Todd J. Campbell on 12/11/06. (dt) (Entered: 12/11/2006)
258 Mail Returned as Undeliverable. 257 Order on Motion for Attorney Fees. Mail sent to Shiela Agneil; envelope marked Returned to Sender, Not Deliverable as Addressed Unable to Forward. (dt) (Entered: 12/26/2006)
259 NOTICE by Brian A. Notice of Withdrawal of Appearance of Douglas C. Gray (Raybin, David) (Entered: 01/25/2007)
260 NOTICE by Brian A. Notice of Withdrawal of Appearance of Corene Kendrick (Raybin, David) (Entered: 01/25/2007)
261 NOTICE by Brian A. Notice of Withdrawal of Appearance of Jeffrey Powell (Raybin, David) (Entered: 01/25/2007)

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03/06/2007 262 NOTICE of Filing by Brian A. Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Exhibit Monitoring Report)(Raybin, David) (Entered: 03/06/2007)

05/07/2007

263 PROPOSED STIPULATED MODIFICATIONS TO THE SETTLEMENT AGREEMENT AND REQUEST FOR COURT APPROVAL OF MODIFIED SETTLEMENT AGREEMENT filed by Brian A.. (Attachments: # 1 Exhibit Exhibit A − Stipulation of Settlement of Contempt Motion# 2 Exhibit Exhibit B − Stipulation Extending Monitoring# 3 Exhibit Exhibit C − Red−Lined Settlement Agreement# 4 Exhibit Exhibit D − Modified Settlement Agreement)(Raybin, David) Modified Text on 5/8/2007 (dt). (Entered: 05/07/2007)

05/08/2007 264 STIPULATED MODIFICATIONS TO THE SETTLEMENT AGREEMENT AND COURT APPROVAL OF MODIFIED SETTLEMENT AGREEMENT. Signed by Judge Todd J. Campbell on 5/8/07. (dt) (Entered: 05/09/2007)

05/11/2007 265 MODIFIED SETTLEMENT AGREEMENT. Signed by Judge Todd J. Campbell on 5/11/07. (dt) (Entered: 05/11/2007)

05/14/2007

266 MOTION for attorney Yasmin Grewal−Kok to Appear Pro Hac Vice by Brian A.. (Raybin, David) (w/ att'd certificate of good standing) (PHV FEE PAID on 5/30/07) Modified Text on 5/15/2007 (dt). Modified Text on 5/31/2007 (dt). (Entered: 05/14/2007)

05/15/2007

Note to Filer re Docket Entry No. 266: The filer's name should be typed in the space where the signature would otherwise appear preceded by the symbol "s/" or inserted by facsimile signature. Also, the Certificate of Good Standing should be filed as separate event, not as an attachment to a document. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 05/15/2007)

05/16/2007 267 Mail Returned as Undeliverable. 264 Stipulation and Order. Mail sent to Shiela Agneil, envelope marked returned to sender, not deliverable as addressed. (dt) (Entered: 05/17/2007)

05/30/2007 268 RECEIPT #114958 in the amount of $75.00 posted by Children's Rights, Inc. for Yasmin Grewal−Kok, attorney for Plaintiffs, re 266 Motion to Appear Pro Hac Vice. (dt) (Entered: 05/31/2007)

06/13/2007 269 ORDER granting 266 Motion for Attorney Yasmin Grewal−Kok to Appear Pro Hac Vice. Signed by Judge Todd J. Campbell on 6/13/07. (gi, ) (Entered: 06/13/2007)

06/14/2007 270 Mail Returned as Undeliverable. 265 Order. Mail sent to Shiela Agneil, envelope marked, Return to Sender Not Deliverable as Addressed. (dt) (Entered: 06/15/2007)

07/23/2007 271 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit Affidavit of Marcia Robinson Lowery)(Raybin, David) (Entered: 07/23/2007)

07/23/2007 272 PROPOSED ORDER re: 271 MOTION for Attorney Fees and Expenses. (Raybin, David) Modified Text on 7/24/2007 (dt). (Entered: 07/23/2007)

07/24/2007

Note to Filer re DE# 271: Signed affidavits/declarations should be filed as separate events, not as attachments to other pleadings. Each exhibit should be filed as a separate attachment to the main document and the mandatory description field used. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 07/24/2007)

07/24/2007

273 ORDER: Plaintiff's Motion for Attorney Fees 271 is Granted. The Court hereby grants Plaintiff's motion for $188,195.55 in attorneys' fees and $5,146.27 in out−of−pocket expenses. Having previously found that application of Rule 23(h) does not require approval of notice, publication and a hearing in connection with each of Plaintiffs' periodic requests for fees, the Court further orders that notice and hearing are not required in connection with this motion. Signed by Judge Todd J. Campbell on 7/24/07. (dt) (Entered: 07/24/2007)

09/12/2007 274 Mail Returned as Undeliverable. 273 Order on Motion for Attorney Fees. Mail sent to Shiela Agneil; envelope marked UTF. (dt) (Entered: 09/12/2007)

09/18/2007 275 NOTICE of Filing by Brian A. (Attachments: # 1 Exhibit Monitoring Report Introductory Materials# 2 Exhibit monitoring Report Section 1 pgs 10−38# 3 Exhibit
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09/18/2007
04/16/2008 04/16/2008 04/17/2008
04/21/2008 04/29/2008 09/30/2008
10/01/2008 10/09/2008 11/25/2008 11/25/2008

Monitoring Report Section 1 pgs 39−64# 4 Exhibit Monitoring Report Sections II−IV# 5 Exhibit Monitoring Report Section V# 6 Exhibit Monitoring Report Section VI 105−122# 7 Exhibit Monitoring Report Section VI pgs 123−143# 8 Exhibit Monitoring Report Section VII# 9 Exhibit Monitoring Report Section VIII−X# 10 Exhibit Monitoring Report Section XI & XII# 11 Appendix Appendices A−D# 12 Appendix Appendix E# 13 Appendix Appendices F−G# 14 Appendix Appendices H−I# 15 Appendix Appendix J)(Raybin, David) (Entered: 09/18/2007)
276 **FILED IN ERROR−DUPLICATE ENTRY−SEE DE# 275** NOTICE of Filing by Brian A. (Attachments: # 1 Exhibit Monitoring Report Introductory Materials# 2 Exhibit monitoring Report Section 1 pgs 10−38# 3 Exhibit Monitoring Report Section 1 pgs 39−64# 4 Exhibit Monitoring Report Sections II−IV# 5 Exhibit Monitoring Report Section V# 6 Exhibit Monitoring Report Section VI 105−122# 7 Exhibit Monitoring Report Section VI pgs 123−143# 8 Exhibit Monitoring Report Section VII# 9 Exhibit Monitoring Report Section VIII−X# 10 Exhibit Monitoring Report Section XI & XII# 11 Appendix Appendices A−D# 12 Appendix Appendix E# 13 Appendix Appendices F−G# 14 Appendix Appendices H−I# 15 Appendix Appendix J)(Raybin, David) Modified on 9/18/2007 (dt, ). (Entered: 09/18/2007)
277 MOTION for Attorney Fees by Brian A.. (Attachments: # 1 Exhibit Affidavit and Exhibits)(Raybin, David) (Entered: 04/16/2008)
278 Proposed Order re 277 Motion for Attorney Fees by Brian A.. (Raybin, David) Modified Text on 4/17/2008 (dt). (Entered: 04/16/2008)
Note to Filer re Docket Entry No. 277 −278: Signed affidavit should be filed as a separate event, not as an attachment to other pleading. This document has been scanned. Scanning should be used only for documents that are not created on your computer. Pursuant to Administrative Order No. 167 on Electronic Case Filing Practices and Procedures, Section 5.08, Proposed Orders should be included as an attachment to an electronically filed motion or other request for relief. If the Court orders that counsel submit a proposed order, it should be submitted as an attachment to a Notice of Filing. These documents do not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 04/17/2008)
279 ORDER: Plaintiffs' Motion for $115,749.75 in attorneys' fees and $2,323.15 in out−of−pocket expenses 277 is granted. Signed by Chief Judge Todd J. Campbell on 4/21/08. (dt) (Entered: 04/21/2008)
280 Mail Returned as Undeliverable. 279 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 04/30/2008)
281 PROPOSED STIPULATED Modifications to the Settlement Agreement and Request for Court Approval of the 2008 Modified Settlement Agreement by Brian A.. (Attachments: # 1 Exhibit Stip Settling Contempt 12.29.03, # 2 Exhibit Stip Extending Monitoring 02 28 06, # 3 Exhibit Stip for Modification 05 09 07, # 4 Exhibit Period IV 2008 Red−lined Modified SA 09 30 08, # 5 Exhibit Period IV 2008 Modified SA 09 30 08, # 6 Supplement Certificate of Service)(Raybin, David) Modified Text on 10/1/2008 (dt). (Entered: 09/30/2008)
282 STIPULATED ORDER OF MODIFICATIONS TO THE SETTLEMENT AGREEMENT AND REQUEST FOR COURT APPROVAL OF THE 2008 MODIFIED SETTLEMENT AGREEMENT. Signed by Chief Judge Todd J. Campbell on 10/1/08. (dt) (Entered: 10/01/2008)
283 Mail Returned as Undeliverable. 282 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 10/09/2008)
284 MOTION for Attorney Fees by Brian A.. (Attachments: # 1 Exhibit Affidavit, # 2 Proposed Order Proposed order)(Raybin, David) (Entered: 11/25/2008)
285 ORDER: Having duly considered all papers submitted in connection with Plaintiffs' motion for reimbursement of attorneys' fees and expenses, the Court hereby grants Plaintiffs' 284 motion for $143,358.10 in attorneys' fees and $6,210.92 in out−of−pocket expenses pursuant to Fed. R. Civ. P. 23(h), Local Civil Rule 54.01(b)

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and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication and a hearing in connection with each of Plaintiffs' periodic requests for fees, the Court further orders that notice and hearing are not required in connection with this motion. Signed by Chief Judge Todd J. Campbell on 11/25/08. (dt) (Entered: 11/25/2008)

11/26/2008

Note to Filer re Docket Entry No. 284: The filer's name should be typed in the space where the signature would otherwise appear on the certificate of service preceded by the symbol "s/" or inserted by facsimile signature. A signed affidavit should be filed as a separate event, not as an attachment to a pleading. Each exhibit should be filed as a separate attachment to the main document and the mandatory description field used. These documents do not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 11/26/2008)

12/08/2008 286 Mail Returned as Undeliverable. 285 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 12/09/2008)

12/15/2008

287 NOTICE of Filing by Brian A. of the Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Exhibit Monitoring Report of the Technical Assistance Committee 12−15−08, # 2 Appendix Appendices)(Raybin, David) (Entered: 12/15/2008)

01/12/2009

288 STIPULATION by Brian A.. (Attachments: # 1 Exhibit Stipulation of Settlement of Contempt Motion, # 2 Exhibit Stipulation extending monitoring, # 3 Exhibit Stipulated Modification to Settlement Agreement, # 4 Exhibit Stipulated Modification to 2008 Settlement Agreement, # 5 Exhibit January 2009 Red lined modified settlement agreement, # 6 Exhibit January 2009 modified settlement agreement)(Raybin, David) (Entered: 01/12/2009)

01/13/2009

289 STIPULATED MODIFICATIONS to the Settlement Agreement and Request for Court Approval of the January 2009 Modified Settlement Agreement: The modifications outlined in this order will best further the purposes of the Settlement Agreement. The January 2009 Modified Settlement Agreement, replaces and supersedes the 2008 Settlement Agreement entered by the Court on October 1, 2008. Other than as set forth herein, previous stipulations and orders in this action shall remain in full force and effect. Signed by Chief Judge Todd J. Campbell on 1/13/09. (km) (Entered: 01/13/2009)

06/16/2009 290 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit Affidavit of Marcia Robinson Lowry, # 2 Exhibit Charts, # 3 Exhibit Timeslips, # 4 Exhibit Expense Report, # 5 Exhibit Resume)(Raybin, David) (Entered: 06/16/2009)

06/16/2009 291 ORDER granting 290 Motion for Attorney Fees. The Court grants Plaintiffs' motion for $102,205.50 in attorneys' fees and $3,898.51 in out−of−pocket expenses. Signed by Chief Judge Todd J. Campbell on 6/16/09. (dt) (Entered: 06/16/2009)

08/13/2009

292 MOTION for attorney(s) Patrick S. Almonrode to Appear Pro Hac Vice (Fee Paid on 8/13/09) by Brian A.. (w/ attached certificate of good standing from USDC/SDNY) (Raybin, David) Modified Text on 8/17/2009 (dt). Modified on 2/10/2010 (af). (Entered: 08/13/2009)

08/13/2009 293 RECEIPT #34675−8615 in the amount of $75.00 posted by Childrens Rights Inc. for Patrick S. Almonrode, attorney for Brian A., re 292 Motion to Appear Pro Hac Vice. (dt) (Entered: 08/13/2009)

08/17/2009

Bar status for attorney Patrick S. Almonrode of NY verified as active this date. (dt) (Entered: 08/17/2009)

09/09/2009 294 MOTION Permission to manually file certain exhibits by Brian A.. (Dixon, Jacqueline) (Entered: 09/09/2009)

09/09/2009 295 ORDER granting 294 Motion for Permission to Manually File Certain Exhibits. Signed by Chief Judge Todd J. Campbell on 9/9/09. (dt) (Entered: 09/09/2009)

09/09/2009 296 MOTION for Temporary Restraining Order or, in the alternative, for a Preliminary Injunction by Brian A.. (Dixon, Jacqueline) Modified Text on 9/10/2009 (dt). (Entered: 09/09/2009)

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09/09/2009 09/09/2009

297 MEMORANDUM in Support of 296 MOTION for Temporary Restraining Order or, in the alternative, for a Preliminary Injunction filed by Brian A.. (Dixon, Jacqueline) Modified Text on 9/10/2009 (dt). (Entered: 09/09/2009)
298 AFFIDAVIT of Ira P. Lustbader in support of 296 MOTION for Temporary Restraining Order or, in the alternative, for a Preliminary Injunction by Brian A. (Attachments: # 1 Exhibit July 2001 Brian A Settlement Agreement, # 2 Exhibit Jan 2009 Modified Brian A Settlement Agreement, # 3 Exhibit Public Chap 531, Minutes 4−16−2009, TCSAC Update 5−15−2009, # 4 Exhibit FY 2008−09 Original Budget, Anderson Cty, # 5 Exhibit TCJFCJ Minutes 2−9−09; TCJFCJ Minutes 7−10−09, # 6 Exhibit TN Child & Family Services Review, April 2009, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit Tenn Title IV−E State Plan, # 10 Exhibit US Child Welfare Policy)(Dixon, Jacqueline) Modified Text on 9/10/2009 (dt). (Entered: 09/09/2009)

09/10/2009

The Court is in receipt of the manually filed exhibits as of this date. (dt) (Entered: 09/11/2009)

09/14/2009

299 ORDER Setting Hearing on 296 MOTION for Preliminary Injunction: Motion Hearing set for 10/13/2009 at 9:00 AM before Chief Judge Todd J. Campbell. The parties shall file with the Court by October 2, 2009, the following pertaining to the preliminary injunction hearing: (1) any affidavits; (2) witness lists; (3) exhibit lists; (4) any depositions and/or deposition designations; (5) any stipulations; (6) any motions in limine; and (7) supplemental briefs. Any responses shall be filed by October 9, 2009. No witness shall testify live at the preliminary injunction hearing unless the party calling such witness to testify has identified and made that witness available for a deposition prior to the hearing. Signed by Chief Judge Todd J. Campbell on 9/14/09. (dt) (Entered: 09/14/2009)

09/21/2009 09/21/2009
09/28/2009 09/28/2009

300 NOTICE of Filing by Donald Sundquist, George W. Hattaway Supplemental TAC Monitoring Report (Driver, Elizabeth) (Entered: 09/21/2009)
301 SUPPLEMENTAL Monitoring Report filed by Donald Sundquist, George W. Hattaway. (Attachments: # 1 Appendix)(Driver, Elizabeth) Modified Text on 9/22/2009 (dt). (Entered: 09/21/2009)
302 Joint MOTION to Amend/Correct Scheduling Order by Brian A.. (Attachments: # 1 Proposed Order)(Grewal−Kok, Yasmin) (Entered: 09/28/2009)
303 ORDER granting 302 Motion to Amended Scheduling Order. Signed by Chief Judge Todd J. Campbell on 9/28/09. (dt) (Entered: 09/28/2009)

10/02/2009

304 RESPONSE in Opposition re 296 MOTION for Temporary Restraining Order filed by Donald Sundquist, George W. Hattaway. (Attachments: # 1 Exhibit 1 to Response in Opposition to Preliminary Injunction, # 2 Exhibit 2 to Response in Opposition to Preliminary Injunction, # 3 Exhibit 3 to Response in Opposition to Preliminary Injunction, # 4 Exhibit 4 to Response in Opposition to Preliminary Injunction, # 5 Exhibit 5 to Response in Opposition to Preliminary Injunction)(Driver, Elizabeth) (Entered: 10/02/2009)

10/02/2009 305 Exhibit List by Donald Sundquist, George W. Hattaway.. (Driver, Elizabeth) (Entered: 10/02/2009)

10/02/2009 10/02/2009 10/02/2009
10/02/2009

306 STIPULATION of Parties' Joint Findings of Fact by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/02/2009)
307 Witness List of Plaintiffs by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/02/2009)
308 Exhibit List of Plaintiffs by Brian A... (Attachments: # 1 Exhibit S−1, # 2 Exhibit S−7, # 3 Exhibit S−8 through S−13, # 4 Exhibit P−1 through P−8, # 5 Exhibit S−22, Part One, # 6 Exhibit S−22, Part Two, # 7 Exhibit S−23 through S−24, # 8 Exhibit S−25 through S−36, # 9 Exhibit S−37 through S−38, # 10 Exhibit S−6, Part One, # 11 Exhibit S−6, Part Two, # 12 Exhibit S−6, Part Three, # 13 Exhibit S−6, Part Four, # 14 Exhibit S−6, Part Five, # 15 Exhibit S−6, Part Six, # 16 Exhibit S−6, Part Seven, # 17 Exhibit S−2 through S−5, # 18 Exhibit S−14 through S−21)(Grewal−Kok, Yasmin) (Entered: 10/02/2009)
309 STIPULATION of Parties to the Authenticity and Admissibility of Documents for Preliminary Injunction Hearing by Brian A.. (Attachments: # 1 Exhibit S−2 through

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10/05/2009 10/05/2009 10/06/2009 10/06/2009 10/06/2009 10/06/2009 10/07/2009 10/07/2009 10/08/2009
10/08/2009 10/09/2009 10/09/2009
10/09/2009 10/09/2009
10/09/2009 10/09/2009

S−5, # 2 Exhibit S−6, Part One, # 3 Exhibit S−6, Part Two, # 4 Exhibit S−6, Part Three, # 5 Exhibit S−6, Part Five, # 6 Exhibit S−6, Part Six, # 7 Exhibit S−6, Part Seven, # 8 Exhibit S−7, # 9 Exhibit S−8 through S−13, # 10 Exhibit S−14 through S−21, # 11 Exhibit S−22, Part One, # 12 Exhibit S−22, Part Two, # 13 Exhibit S−23 through S−24, # 14 Exhibit S−25 through S−36, # 15 Exhibit S−37 through S−38, # 16 Exhibit S−1, # 17 Exhibit S−6, Part Four)(Grewal−Kok, Yasmin) (Entered: 10/02/2009)
310 MOTION Permission to Manually File Certain Exhibits by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/05/2009)
311 ORDER granting 310 Motion for Permission to Manually File Certain Exhibits. Signed by Chief Judge Todd J. Campbell on 10/5/09. (dt) (Entered: 10/06/2009)
312 MOTION for Leave to file an amicus brief by John Michael Thompson. (Thompson, John) (Entered: 10/06/2009)
313 BRIEF filed by John Michael Thompson re 312 Motion for Leave. (Thompson, John) (Entered: 10/06/2009)
314 ORDER granting 312 Motion of the TCJFCJ for Leave to File an Amicus Curiae Brief. Signed by Chief Judge Todd J. Campbell on 10/6/09. (dt) (Entered: 10/06/2009)
315 STIPULATION of Submission into Evidence of Deposition and Video Recorded Witness Testimony by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Grewal−Kok, Yasmin) (Entered: 10/06/2009)
316 STIPULATION of Submission into Evidence of Deposition Witness Testimony by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Grewal−Kok, Yasmin) (Entered: 10/07/2009)
Received Manual Filed Exhibits as of this date. (dt) (Entered: 10/07/2009)
Note to filer, Yasmin Grewal−Kok, re DE 316 : Pursuant to Court Policy and Procedure and Local Rule 5.01, Certificates of Service must include the names and full addresses for all persons served (whether served electronically or by other means), what was served, method of service, and date of service. THECERTIFICATE OF SERVICE SHALL BE RE−FILED. (dt) (Entered: 10/08/2009)
317 CERTIFICATE of Service filed by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/08/2009)
318 RESPONSE in Opposition re 312 MOTION for Leave to file an amicus brief filed by Donald Sundquist, George W. Hattaway. (Driver, Elizabeth) (Entered: 10/09/2009)
319 Exhibit List by Donald Sundquist, George W. Hattaway.. (Attachments: # 1 Exhibit D−1, Bill Summary of SB 2357/HB 2389 and Declaration of Paige Seals, # 2 Exhibit D−2, DCS Chart: DCS Historical County Commitment Data, # 3 Exhibit D−3, DCS Chart: Comparison of Lab Seizures to Commitment Rates, # 4 Exhibit D−4, DCS Chart: FY2008, FY2009 Comparison of Commitment Rates to Lab Seizures)(Driver, Elizabeth) (Entered: 10/09/2009)
320 DECLARATION of Paige A. Seals filed by Donald Sundquist, George W. Hattaway. (Attachments: # 1 Exhibit 1, Bill Summary)(Driver, Elizabeth) (Entered: 10/09/2009)
321 DECLARATION of Viola Miller filed by Donald Sundquist, George W. Hattaway. (Attachments: # 1 Exhibit 1, DCS Chart: DCS Historical County Commitment Data, # 2 Exhibit 2, CY2008 Methamphetamine Lab Seizure Map, # 3 Exhibit 3, DCS Chart: Comparison of Lab Seizures to Commitment Rates, # 4 Exhibit 4, DCS Chart: Comparison of Commitment Rates to Lab Seizures)(Driver, Elizabeth) (Entered: 10/09/2009)
322 STIPULATION of Parties Amending Joint Stipulation to the Authenticity and Admissibility of Documents for Preliminary Injunction Hearing by Brian A.. (Attachments: # 1 Exhibit S−1 to S−55)(Grewal−Kok, Yasmin) (Entered: 10/09/2009)
323 Exhibit List of Plaintiffs (Amended) by Brian A... (Attachments: # 1 Exhibit S−1 to S−44, S−54 to S−55, P−1 to P−6)(Grewal−Kok, Yasmin) (Entered: 10/09/2009)

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10/09/2009 10/09/2009 10/12/2009 10/12/2009 10/13/2009
10/14/2009
10/14/2009 10/15/2009 10/16/2009
10/16/2009 11/04/2009
11/09/2009 11/09/2009 11/12/2009 11/12/2009 11/13/2009

324 REPLY to Response to 296 MOTION for Temporary Restraining Order or, in the Alternative, a Preliminary Injunction filed by Brian A.. (Grewal−Kok, Yasmin) Modified Text on 10/13/2009 (dt). (Entered: 10/09/2009)
325 Proposed Findings of Fact and Conclusions of Law by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/09/2009)
326 CORRECTED AMENDED EXHIBIT LIST filed by Donald Sundquist, George W. Hattaway. (Driver, Elizabeth) Modified Text on 10/13/2009 (dt). (Entered: 10/12/2009)
327 Proposed Findings of Fact and conclusion of law (corrected) by Brian A.. (Raybin, David) (Entered: 10/12/2009)
328 Minute Entry for proceedings held before Chief Judge Todd J. Campbell: Motion Hearing held on 10/13/2009 re 296 MOTION for Temporary Restraining Order filed by Brian A. (Court Reporter Cathy Leigh.) (Attachments: # 1 Exhibit and Witness List) (dt) (Additional attachment(s) added on 10/13/2009: # 1 Exhibit and Witness List) (dt). (Entered: 10/13/2009)
Note to filer, David Raybin, re DE 327 : Pursuant to Court Policy and Procedure and Local Rule 5.01, Certificates of Service must include the names and full addresses for all persons served (whether served electronically or by other means), what was served, method of service, date of service and a signature. THE CERTIFICATE OF SERVICE SHALL BE RE−FILED. (dt) (Entered: 10/14/2009)
329 CERTIFICATE OF SERVICE by Brian A. re 327 Proposed Findings of Fact (Raybin, David) (Entered: 10/14/2009)
330 MEMORANDUM. Signed by Chief Judge Todd J. Campbell on 00cv445. (dt) (Entered: 10/16/2009)
331 ORDER: Pending before the Court is Plaintiffs' Motion for a Temporary Restraining Order or, in the Alternative, for a Preliminary Injunction 296 . The Court held a hearing on Plaintiffs' Motion on 10/13/2009. For the reasons stated in the accompanying Memorandum, Plaintiffs' Motion is DENIED. Signed by Chief Judge Todd J. Campbell on 10/15/09. (dt) (Entered: 10/16/2009)
332 CERTIFIED MAIL RECEIPT re 331 Order on Motion for TRO. (dt) (Entered: 10/16/2009)
333 Transcript filed for dates of 10/13/09 before Judge Campbell. Court Reporter/Transcriber: Cathy Leigh, Telephone number: (615) 726−8697, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 11/16/2009. Redaction Request due 11/23/2009. Redacted Transcript Deadline set for 12/2/2009. Release of Transcript Restriction set for 2/1/2010. (dt) (Entered: 11/04/2009)
334 MOTION for Leave to File Supplemental Complaint by Brian A.. (Grewal−Kok, Yasmin) (Entered: 11/09/2009)
335 MEMORANDUM in Support of 334 MOTION for Leave to File Supplemental Complaint filed by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Grewal−Kok, Yasmin) (Entered: 11/09/2009)
336 MOTION for Leave to File Second Supplemental Complaint by Brian A.. (Grewal−Kok, Yasmin) (Entered: 11/12/2009)
337 MEMORANDUM in Support of 336 MOTION for Leave to File Second Supplemental Complaint filed by Brian A.. (Attachments: # 1 Exhibit A)(Grewal−Kok, Yasmin) (Entered: 11/12/2009)
338 ORDER: Pending before the Court are a Motion for Leave to File Supplemental Complaint 334 and a Motion for Leave to File Second Supplemental Complaint 336 . Defendants shall file a Consolidated Response to both Motions by 12/1/2009. Signed by Chief Judge Todd J. Campbell on 11/13/09. (dt) (Entered: 11/13/2009)

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11/23/2009 339 Certified Mail Returned as Undeliverable. 331 Order and 330 Memorandum. Mail sent to Shiela Agneil, envelope marked Returned to Sender, Unclaimed, Unable to Forward. (dt) (Entered: 11/23/2009)

12/01/2009

340 RESPONSE in Opposition re 334 MOTION for Leave to File Supplemental Complaint, 336 MOTION for Leave to File Second Supplemental Complaint filed by Donald Sundquist, George W. Hattaway. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Driver, Elizabeth) (Entered: 12/01/2009)

12/02/2009

341 MOTION for Leave to File Reply re 334 MOTION for Leave to File Supplemental Complaint, 336 MOTION for Leave to File Second Supplemental Complaint, 340 Response in Opposition to Motion, by Brian A.. (Grewal−Kok, Yasmin) (Entered: 12/02/2009)

12/04/2009 342 MEMORANDUM. Signed by Chief Judge Todd J. Campbell on 12/4/09. (dt) (Entered: 12/04/2009)

12/04/2009

343 ORDER: For the reasons stated in the accompanying Memorandum, Plaintiffs' Motion for Leave to File Supplemental Complaint 334 and Motion for Leave to File Second Supplemental Complaint 336 are GRANTED. The Clerk is directed to file the Supplemental Complaint (Docket No. 335−1) and the Second Supplemental Complaint (Docket No. 337−1). The Supplemental Complaint and the Second Supplemental Complaint shall be deemed filed as of the dates the Proposed Supplemental Complaints (Docket Nos. 335−1 and 337−1) were filed, 11/9/2009 and 11/12/2009, respectively. Defendants shall file Responses to the Supplemental Complaints by 1/4/2009. This case is referred to the Magistrate Judge for customized case management as to the Supplemental Complaints. Signed by Chief Judge Todd J. Campbell on 12/4/09. (dt) (Entered: 12/04/2009)

12/04/2009 344 SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against Phil Bredesen and Viola Miller, filed by plaintiffs.(dt) (Entered: 12/04/2009)

12/04/2009 345 SECOND SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against all defendants, filed by plaintiffs.(dt) (Entered: 12/04/2009)

12/09/2009 346 MOTION for Preliminary Injunction by Brian A.. (Grewal−Kok, Yasmin) (Entered: 12/09/2009)

12/09/2009 347 MEMORANDUM in Support of 346 MOTION for Preliminary Injunction filed by Brian A.. (Grewal−Kok, Yasmin) (Entered: 12/09/2009)

12/09/2009

348 AFFIDAVIT re 346 MOTION for Preliminary Injunction of Ira P. Lustbader by Brian A.. (Attachments: # 1 Exhibit 1−2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5−11, # 5 Exhibit 12−14, # 6 Exhibit 15, Part 1, # 7 Exhibit 15, Part 2, # 8 Exhibit 16−17, # 9 Exhibit 18, # 10 Exhibit 19−22, # 11 Exhibit 23, Part 1, # 12 Exhibit 23, Part 2, # 13 Exhibit 24, # 14 Exhibit 25−26)(Grewal−Kok, Yasmin) (Entered: 12/09/2009)

12/11/2009

349 MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings by Phil Bredesen, Viola Miller, Department of Children's Services. (Dimond, Douglas) (Entered: 12/11/2009)

12/11/2009

350 MEMORANDUM in Support of 349 MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings filed by Phil Bredesen, Viola Miller, Department of Children's Services. (Dimond, Douglas) (Entered: 12/11/2009)

12/11/2009

351 DECLARATION of Douglas Earl Dimond filed by Phil Bredesen, Viola Miller, Department of Children's Services re: 350 Memorandum in Support, 349 MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings. (Dimond, Douglas) (Entered: 12/11/2009)

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12/14/2009
12/14/2009
12/16/2009
01/04/2010 01/18/2010 01/18/2010 01/18/2010 01/20/2010 01/21/2010 02/05/2010 02/05/2010 02/05/2010 02/09/2010 02/09/2010

352 RESPONSE to Motion re 349 MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings MOTION for Extension of Time to File Response/Reply as to 343 Order on Motion for Leave,,,,,,, 346 MOTION for Preliminary Injunction and to Consolidate Hearings filed by Brian A.. (Grewal−Kok, Yasmin) (Entered: 12/14/2009)
353 ORDER: Pending before the Court is Defendants Motion to Extend Defendants' Time to Answer Supplemental Complaints 349 . Defendants seek additional time to file Answers to the Supplemental Complaint and Responses to Plaintiffs' Motion for Preliminary Injunction. Defendants' requests are GRANTED, and Defendants shall have until 1/18/2009, to file their Answers and Responses herein. Defendants also request that the Court consolidate the hearing on Plaintiffs' Motion for Preliminary Injunction with any final hearing of the merits of this case. Plaintiffs shall file a Response to this request by 1/4/2009. Signed by Chief Judge Todd J. Campbell on 12/14/09. (dt) (Entered: 12/14/2009)
354 ORDER: Pending before the Court is Defendants' request that the Court consolidate the hearing on Plaintiffs' Motion for Preliminary Injunction with any final hearing of the merits of this case. Plaintiffs have indicated they have no opposition to this consolidation. Therefore, Defendants' request is GRANTED. The Court has referred this action to the Magistrate Judge for case management. The Magistrate Judge shall indicate in the Case Management Order a target date for the consolidated hearing in this matter. Signed by Chief Judge Todd J. Campbell on 12/16/09. (dt) (Entered: 12/16/2009)
355 Mail Returned as Undeliverable. 353 354 Orders. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 01/04/2010)
356 MOTION to Dismiss Supplemental Complaint and Second Supplemental Complaint by Phil Bredesen, Viola Miller. (Driver, Elizabeth) (Entered: 01/18/2010)
357 MEMORANDUM in Support of 356 MOTION to Dismiss Supplemental Complaint and Second Supplemental Complaint filed by Phil Bredesen, Viola Miller. (Driver, Elizabeth) (Entered: 01/18/2010)
358 RESPONSE in Opposition re 346 MOTION for Preliminary Injunction filed by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Driver, Elizabeth) (Entered: 01/18/2010)
359 MOTION for Leave to Reply and for Extension of Time by Brian A.. (Grewal−Kok, Yasmin) (Entered: 01/20/2010)
360 ORDER: Motion for Leave to Reply and for Extension of Time 359 is Granted. Plaintiffs shall have until 2/5/2010, to file theircombined Reply and Response. Signed by Chief Judge Todd J. Campbell on 1/21/10. (dt) (Entered: 01/21/2010)
361 RESPONSE filed by Brian A. to 356 Motion to Dismiss the Supplemental Complaints filed by Phil Bredesen, Viola Miller. (Grewal−Kok, Yasmin) Modified Text on 2/9/2010 (dt). (Entered: 02/05/2010)
362 AFFIDAVIT re 361 Response (Non−Motion or 2255 Petition) of Yasmin Grewal−Kok by Brian A.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Grewal−Kok, Yasmin) (Entered: 02/05/2010)
REPLY to Response to 346 MOTION for Preliminary Injunction filed by Brian A.. (Filed for In−Court Tracking Purposes, See DE# 361 for PDF) (dt) (Entered: 02/09/2010)
363 MOTION for Leave to To File Reply by Phil Bredesen, Viola Miller. (Driver, Elizabeth) (Entered: 02/09/2010)
364 ORDER granting 363 Motion for Leave to File Reply to Motion to Dismiss the Supplemental Complaint. Defendants shall have until 2/19/2010, to file a Reply brief. Signed by Chief Judge Todd J. Campbell on 2/9/10. (dt) (Entered: 02/09/2010)

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02/10/2010 02/11/2010 02/11/2010 02/11/2010 02/12/2010 02/16/2010 02/17/2010 02/19/2010
02/19/2010
02/22/2010 02/23/2010 02/23/2010 02/23/2010
02/25/2010 02/25/2010 02/25/2010
03/01/2010 03/01/2010

365 ORDER granting 292 Motion for Patrick S. Almonrode to Appear Pro Hac Vice (Brown, Joe) (Entered: 02/10/2010)
366 CERTIFIED MAIL RECEIPT re 365 ORDER. (dt) (Entered: 02/11/2010)
367 ORDER: Telephone Conference set for 2/16/2010 10:00 AM before Magistrate Judge Joe Brown. Signed by Magistrate Judge Joe Brown on 2/11/10. (cc: pro se parties Michael A. Guth and Shiela Agneil by cert and reg mail)(km) (Entered: 02/11/2010)
368 CERTIFIED MAIL RECEIPT re 367 Order. (km) (Entered: 02/11/2010)
369 MOTION to Continue Telephone Conference by Brian A.. (Grewal−Kok, Yasmin) (Entered: 02/12/2010)
370 ORDER granting 369 Motion to Continue. The Telephone Conference is reset for Thursday, 2/25/2010 at 1:00 p.m. Parties are to dial 615−695−2851 to join the call. Signed by Magistrate Judge Joe Brown on 2/16/10. (dt) (Entered: 02/16/2010)
371 CERTIFIED MAIL RECEIPT re 370 Order. (dt) (Entered: 02/17/2010)
372 REPLY to Response to 356 MOTION to Dismiss Supplemental Complaint and Second Supplemental Complaint filed by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1 − Current Draft of Rules Implementing Statute)(Driver, Elizabeth) Modified Text on 2/22/2010 (dt). (Entered: 02/19/2010)
373 MOTION to Strike Testimony of Judge Meldrum by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1 − Knoxville News Sentinel and Oak Ridger articles, # 2 Exhibit 2 − Judge Meldrum resignation letter and press release, # 3 Exhibit 3 − Oath of Office by Judge Fisher)(Driver, Elizabeth) (Entered: 02/19/2010)
374 Certified Mail Return Receipt Card received this date as to DE #370 signed by Michael Guth on 2/19/10. (dt) (Entered: 02/22/2010)
375 Joint MOTION for Scheduling Order by Brian A.. (Attachments: # 1 Proposed Order)(Grewal−Kok, Yasmin) (Entered: 02/23/2010)
376 MEMORANDUM OF THE COURT. Signed by Chief Judge Todd J. Campbell on 2/23/10. (af) (Entered: 02/24/2010)
377 ORDER: Pending before the Court are Defendants' Motion to Dismiss Supplemental Complaint and Second Supplemental Complaint (Docket No. 356 ) and Defendants' Motion to Take Judicial Notice and to Strike (Docket No. 373 ). For the reasons stated in the accompanying Memorandum, Defendants' Motions are DENIED. IT IS SO ORDERED. Signed by Chief Judge Todd J. Campbell on 2/23/10. (af) (Entered: 02/24/2010)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Telephone Conference held on 2/25/2010. Order to enter. (mk) (Entered: 02/25/2010)
378 SCHEDULING ORDER: Joint Motion of the parties for scheduling order 375 is Granted. Signed by Magistrate Judge Joe Brown on 2/25/10. (dt) (Entered: 02/25/2010)
379 ORDER: The parties have requested that the Court set a date for a consolidated hearing on Plaintiffs' Motion for Preliminary Injunction and the final merits of this case at the earliest date after 3/19/2010, that is convenient to the Court. See Docket No. 378 . The consolidated hearing shall be held on Monday, 4/19/2010, beginning at 9:00 a.m. All other deadlines are set forth in the Order of the Magistrate Judge dated 2/25/2010 (Docket No. 378 ). Signed by Chief Judge Todd J. Campbell on 2/25/10. (dt) (Entered: 02/25/2010)
380 Mail Returned as Undeliverable. 365 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 03/02/2010)
381 Mail Returned as Undeliverable. 367 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Not Deliverable as Addressed, Unable to Forward. (dt) (Entered: 03/02/2010)

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03/05/2010 03/08/2010 03/08/2010 03/08/2010 03/09/2010 03/12/2010
03/12/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/16/2010
03/18/2010
03/19/2010 03/19/2010

382 MOTION for Extension of Time to File Answer by Phil Bredesen, Viola Miller. (Driver, Elizabeth) (Entered: 03/05/2010)
383 ORDER: Defendants' Motion to Extend Time to Answer Supplemental Complaint 382 is GRANTED, and Defendants shall have until 4/5/2010, to file their Answer. Signed by Chief Judge Todd J. Campbell on 3/8/10. (dt) (Entered: 03/08/2010)
384 Certified Mail Returned as Undeliverable. 367 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Unclaimed. (dt) (Entered: 03/08/2010)
385 Certified Mail Returned as Undeliverable. 365 Order. Mail sent to Shiela Agneil, envelope marked Return to Sender, Unclaimed. (dt) (Entered: 03/08/2010)
386 Certified Mail Returned as Undeliverable. 367 Order, Set Hearings. Mail sent to Michael A. Guth, envelope marked Return to Sender, Unclaimed. (dt) (Entered: 03/09/2010)
387 First MOTION to Amend Scheduling Order and Continue Hearing by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1 − Declaration of Aaron Campbell, # 2 Exhibit 2 − SB 2974/HB 3020 and Amendment, # 3 Exhibit 3 − Supplemental Declaration of Aaron Campbell, # 4 Exhibit 4 − Attached Case)(Driver, Elizabeth) Modified Text on 3/15/2010 (dt). (Entered: 03/12/2010)
388 Mail Returned as Undeliverable. 377 Order and 376 Memorandum. Mail sent to Shiela Agneil, envelope marked Return to Sender, Attempted Not Known, Unable to Forward. (dt) (Entered: 03/12/2010)
389 RESPONSE in Opposition re 387 First MOTION to Amend Scheduling Order and Continue Hearing filed by Brian A.. (Grewal−Kok, Yasmin) Modified Text on 3/17/2010 (dt). (Entered: 03/15/2010)
390 AFFIDAVIT re 389 Response in Opposition to Motion to Continue of Ira P. Lustbader by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Grewal−Kok, Yasmin) (Entered: 03/15/2010)
391 MOTION for Temporary Restraining Order During Period of Stay and Continuance by Brian A.. (Grewal−Kok, Yasmin) (Entered: 03/15/2010)
392 MEMORANDUM in Support of 391 MOTION for Temporary Restraining Order During Period of Stay and Continuance filed by Brian A.. (Grewal−Kok, Yasmin) (Entered: 03/15/2010)
393 AFFIDAVIT re 391 MOTION for Temporary Restraining Order During Period of Stay and Continuance of Ira P. Lustbader by Brian A.. (Grewal−Kok, Yasmin) (Entered: 03/15/2010)
394 ORDER: Defendants' Motion to Amend Scheduling Order and Continue Hearing 387 is DENIED. The hearing on Plaintiffs' Motion for Preliminary Injunction, which has been consolidated with a final hearing on the merits of the case, remains scheduled for Monday, 4/19/2010. In light of this ruling, Plaintiffs' Motion for a Temporary Restraining Order 391 is DENIED as moot. Signed by Chief Judge Todd J. Campbell on 3/16/10. (dt) (Entered: 03/16/2010)
395 MOTION to Amend/Correct 379 Order Setting Hearing on Motion,, 378 Order on Motion for Miscellaneous Relief from scheduling order by Phil Bredesen, Viola Miller, Donald Sundquist, George W. Hattaway, Department of Children's Services. (Attachments: # 1 Proposed Order)(Dimond, Douglas) (Entered: 03/18/2010)
396 Certified Mail Returned as Undeliverable. 370 Order. Mail sent to Shiela Agneil, envelope Return to Sender, Unclaimed. (dt) (Entered: 03/19/2010)
397 ORDER: Parities' joint motion to modify the scheduling order is hereby GRANTED.By 4/2/2010, the parties shall complete any depositions. By 4/9/2010, the parties shall file with the Court (a) any affidavits; (b) witness lists; (c) joint exhibit list; (d) parties' exhibit lists; (e) stipulated findings of fact; (f) parties' proposed findings of fact and conclusions of law; and (g) any motions in limine. The current hearing date of 4/19/2010,will remain in effect. Signed by Magistrate Judge Joe Brown on 3/19/10. (dt) (Entered: 03/19/2010)

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03/30/2010 03/30/2010 03/30/2010 03/31/2010 06/08/2010 06/17/2010 06/29/2010 06/29/2010
09/09/2010 10/28/2010 11/10/2010
11/10/2010 11/10/2010 11/10/2010

398 MOTION to Dismiss Supplemental Complaints as Moot by Phil Bredesen, Viola Miller. (Driver, Elizabeth) Modified Text on 3/31/2010 (dt). (Entered: 03/30/2010)
399 MEMORANDUM of Law in Support of 398 MOTION to Dismiss Supplemental Complaints as Moot filed by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1 − Signed Copy of Senate Bill 2974)(Driver, Elizabeth) Modified Text on 3/31/2010 (dt). (Entered: 03/30/2010)
400 RESPONSE to 398 MOTION to Dismiss Supplemental Complaint as Moot filed by Brian A.. (Grewal−Kok, Yasmin) Modified Text on 3/31/2010 (dt). (Entered: 03/30/2010)
401 ORDER: Therefore, Defendants' Motion to Dismiss 398 is GRANTED, and Plaintiffs' Supplemental Complaints are DISMISSED without prejudice.The hearing scheduled for April 19, 2010, is canceled, and all other pending Motions are denied as moot. Signed by Chief Judge Todd J. Campbell on 3/31/10. (dt) (Entered: 03/31/2010)
402 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Attachment Lustbader Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Grewal−Kok, Yasmin) (Entered: 06/08/2010)
403 ORDER: Plaintiffs' Motion for for Approval of Attorneys' Fees and Expenses 402 is Granted. Plaintiffs are awarded $101,006.65 in attorneys' fees and $6,112.83 in costs. Signed by Chief Judge Todd J. Campbell on 6/17/10. (dt) Modified Text on 6/18/2010 (dt). (Entered: 06/17/2010)
404 STIPULATION of Parties Extending Monitoring by Brian A.. (Grewal−Kok, Yasmin) (Entered: 06/29/2010)
405 JOINT STIPULATION AND ORDER EXTENDING MONITORING: The TAC shall continue in the role of independent monitor, as defined in Section XV of the 2009 Modified Settlement Agreement 288 , for an additional six−month period (i.e., through December 31, 2010). The TAC shall consist of three to five neutral experts in the child welfare field. In no event shall the number of standing TAC members be less than three or more than five. The TAC shall report on performance under the entire Settlement Agreement for Period IV. Defendants shall continue to fund the TAC's monitoring and technical assistance functions for the additional six−month period. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding. The contemplated continued monitoring will best further the purposes of the Settlement Agreement.The 2009 Modified Settlement Agreement 288 remains in full force and effect. Signed by Chief Judge Todd J. Campbell on 6/29/10. (dt) (Entered: 06/29/2010)
406 STATUS REPORT of Parties Presenting Exit Plan by Brian A.. (Grewal−Kok, Yasmin) (Entered: 09/09/2010)
407 STATUS REPORT of Parties Presenting Exit Plan by Brian A.. (Grewal−Kok, Yasmin) (Entered: 10/28/2010)
408 NOTICE of Filing by Phil Bredesen, Viola Miller of the Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Monitoring Report of the Technical Assistance Committee, # 2 Attachment Appendices to the Monitoring Report of the Technical Assistance Committtee)(Driver, Elizabeth) (Entered: 11/10/2010)
409 PROPOSED JOINT STIPULATION Seeking Court Approval of Proposed 2010 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A − 2010 Modified Settlement Agreement and Exit Plan)(Grewal−Kok, Yasmin) Modified Text on 11/10/2010 (dt). (Entered: 11/10/2010)
410 JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED 2010 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Todd J. Campbell on 11/10/10. (dt) (Entered: 11/10/2010)
411 2010 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Todd J. Campbell on 11/10/10. (dt) (Entered: 11/10/2010)

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12/20/2010 12/20/2010 12/20/2010 12/20/2010 12/20/2010 12/28/2010 12/28/2010 02/01/2011 02/01/2011
03/14/2011
04/11/2011 04/12/2011 04/20/2011

412 MOTION for Attorney Fees and Expenses by Brian A.. (Grewal−Kok, Yasmin) (Entered: 12/20/2010)
413 MEMORANDUM in Support of 412 MOTION for Attorney Fees and Expenses filed by Brian A.. (Attachments: # 1 Exhibit A − Summary Charts, # 2 Exhibit B − Brian A v. Hattaway, # 3 Exhibit C − 2010 Law Firm Billing Survey)(Grewal−Kok, Yasmin) (Entered: 12/20/2010)
414 AFFIDAVIT of Ira P. Lustbader in support 412 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit 1 − Summary of CR Expenses and Fees, # 2 Exhibit 2 − Computerized Timeslips, # 3 Exhibit 3 − Expense Report, # 4 Exhibit 4 − CR Resumes)(Grewal−Kok, Yasmin) Modified Text on 12/21/2010 (dt). (Entered: 12/20/2010)
415 AFFIDAVIT of David L. Raybin in support 412 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit 1 − Raybin Resume, # 2 Exhibit 2 − Dixon Resume, # 3 Exhibit 3 − Computerized Timeslips, # 4 Exhibit 4 − Expense Report)(Grewal−Kok, Yasmin) Modified Text on 12/21/2010 (dt). (Entered: 12/20/2010)
416 AFFIDAVIT of Eric Hecker in support of 412 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit 1 − Hecker Resume)(Grewal−Kok, Yasmin) Modified Text on 12/21/2010 (dt). (Entered: 12/20/2010)
417 MOTION for Extension of Time to File Response/Reply as to 412 MOTION for Attorney Fees and Expenses by Phil Bredesen, Department of Children's Services, Viola Miller. (Dimond, Douglas) (Entered: 12/28/2010)
418 ORDER granting 417 Motion for Extension of Time to File Response/Reply re 412 MOTION for Attorney Fees and Expenses. Signed by Chief Judge Todd J. Campbell on 12/28/2010. (hb) (Entered: 12/28/2010)
419 Joint MOTION for Extension of Time to File Response/Reply as to 412 MOTION for Attorney Fees and Expenses, MOTION for Leave to file Reply re 412 MOTION for Attorney Fees and Expenses by Brian A.. (Grewal−Kok, Yasmin) (Entered: 02/01/2011)
420 ORDER: Pending before the Court is a Joint Motion Requesting Leave for Additional Time for Defendants to File their Response to Plaintiffs' Motion for Approval of Reasonable Attorneys' Fees and Expenses and for Plaintiffs to File a Reply Memorandum 419 . The Motion is GRANTED. Defendants shall file their Response by 3/14/2011, and Plaintiffs shall file their Reply by 4/11/2011. Signed by Chief Judge Todd J. Campbell on 2/1/11. (dt) (Entered: 02/01/2011)
421 RESPONSE in Opposition re 412 MOTION for Attorney Fees and Expenses filed by Phil Bredesen, Viola Miller. (Attachments: # 1 Exhibit 1 − Gautreaux v. Chicago Housing Authority, # 2 Exhibit 2 − Summary of Hours Conferring with Co−counsel, # 3 Exhibit 3 − Summary of Hours Communicating with Stakeholders, # 4 Exhibit 4 − Exclusion of Grewal−Kok and Almonrode Time, # 5 Exhibit 5 − Summary of Hours on TRO Motion and Brief, # 6 Exhibit 6 − Summary of Hours Drafting and Revising FOF and COL, # 7 Exhibit 7 − Summary of Hours Drafting and Revising Reply Brief, # 8 Exhibit 8 − Summary of Hours on Supplemental Complaints, # 9 Exhibit 9 − Summary of Hours on PI Motion and Brief, # 10 Exhibit 10 − Summary of Hours on PI Reply and MTD Response, # 11 Exhibit 11 − Summary of Hours on 2nd FOF and COL, # 12 Exhibit 12 − Summary of Hours on Discovery)(Driver, Elizabeth) (Entered: 03/14/2011)
422 REPLY to Response to Motion re 412 MOTION for Attorney Fees and Expenses filed by Brian A.. (Grewal−Kok, Yasmin) (Entered: 04/11/2011)
423 NOTICE of Filing by Brian A. of Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Monitoring Report 8 of the Technical Assistance Committee, # 2 Attachment Appendices to Monitoring Report 8 of the Technical Assistance Committee)(Grewal−Kok, Yasmin) (Entered: 04/12/2011)
424 MEMORANDUM. Signed by Chief Judge Todd J. Campbell on 4/20/11. (dt) (Entered: 04/20/2011)

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04/20/2011
05/04/2011 05/04/2011 05/16/2011
05/17/2011 06/07/2011 06/07/2011 06/07/2011 06/20/2011 07/11/2011 07/12/2011 07/12/2011 10/26/2011 10/26/2011 02/21/2012 02/21/2012

425 ORDER: For the reasons stated in the accompanying Memorandum, Plaintiffs' Motion for Approval of Reasonable Attorneys' Fees and Expenses 412 is GRANTED in part and DENIED in part. Plaintiffs' request for expenses of $14,111.07 is granted. Plaintiffs shall recalculate their attorneys' fees in light of the rulings in the accompanying Memorandum and shall file a Revised Motion for Attorneys' Fees on or before 5/4/2011. Defendants shall have until 5/11/2011, to file any Response. Signed by Chief Judge Todd J. Campbell on 4/20/11. (dt) (Entered: 04/20/2011)
426 REVISED MOTION for Attorney Fees by Brian A.. (Grewal−Kok, Yasmin) Modified Text on 5/6/2011 (dt). (Entered: 05/04/2011)
427 MEMORANDUM in Support of 426 MOTION for Attorney Fees filed by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Grewal−Kok, Yasmin) (Entered: 05/04/2011)
428 ORDER: Plaintiffs' Motion for Attorney Fees 426 is Granted. Plaintiffs are awarded attorneys' fees against Defendants in the amount of $148,283.30. In addition, Plaintiffs may request reasonable "fees on fees" at a later date.The Court having previously found that notice, publication and a hearing are not required in connection with Plaintiffs' periodic requests for fees herein, notice and a hearing are not required in connection with this Motion. Signed by Chief Judge Todd J. Campbell on 5/16/11. (dt) (Entered: 05/16/2011)
429 NOTICE by Phil Bredesen, Department of Children's Services, Viola Miller of Substitution and Withdrawal (Appiah, Lindsey) (Entered: 05/17/2011)
430 MOTION to Withdraw as Attorney Yasmin Grewel−Kok and admit Pro Hac Vice Melissa A. Cohen by Brian A.. (Raybin, David) (Entered: 06/07/2011)
Bar status for attorney Melissa Ann Cohen of NY verified as active this date. (dt) (Entered: 06/07/2011)
431 ORDER granting 430 Motion to Withdraw as Attorney and for Admission Pro Hac Vice of Melissa A. Cohen. Attorney Yasmin Grewal−Kok terminated. Signed by Chief Judge Todd J. Campbell on 6/7/11. (dt) (Entered: 06/07/2011)
432 RECEIPT #34675017289 in the amount of $75.00 posted by Childrens Rights for Melissa Ann Cohen, attorney for Brian A., re 430 Motion to Withdraw as Attorney and Admission Pro Hac Vice. (dt) (Entered: 06/20/2011)
433 STIPULATION of Parties Seeking Court Approval of Proposed July 2011 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A − July 2011 Modified Settlement Agreement and Exit Plan)(Cohen, Melissa) (Entered: 07/11/2011)
434 JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Todd J. Campbell on 7/12/11. (dt) (Entered: 07/12/2011)
435 ORDER AND JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Todd J. Campbell on 7/12/11. (dt) (Entered: 07/12/2011)
436 PROPOSED STIPULATED One−Time Modification of Section XV.A of July 2011 Modified Settlement Agreement and Exit Plan and Request for Court Approval by Brian A. (Cohen, Melissa) Modified on 10/26/2011 (rd). (Entered: 10/26/2011)
437 STIPULATED ONE−TIME MODIFICATION OF SECTION XV.A OF THE JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Todd J. Campbell on 10/26/11. (rd) (Entered: 10/26/2011)
438 MOTION for Attorney Fees and Expenses by Brian A.. (Cohen, Melissa) (Entered: 02/21/2012)
439 AFFIDAVIT re 438 MOTION for Attorney Fees and Expenses of Ira P. Lustbader by Brian A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cohen, Melissa) (Entered: 02/21/2012)

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02/22/2012

440 ORDER: Plaintiffs have moved for approval of attorneys' fees and expenses in this matter for the period August 1, 2009 through July 31, 2011. (Docket Entry No. 438 ) Within 30 days of the entry of this ORDER, Defendants shall pay a total of $303,846.24 to Children's Rights, in complete payment and settlement of all fees and expenses for the period from August 1, 2009 to July 31, 2011. Signed by Chief Judge Todd J. Campbell on 2/22/2012. (hb) (Entered: 02/22/2012)

07/09/2012

441 NOTICE of Filing by Brian A. of Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Monitoring Report 9 of the Technical Assistance Committee, # 2 Attachment Appendices to Monitoring Report 9 of the Technical Assistance Committee)(Cohen, Melissa) (Entered: 07/09/2012)

07/10/2012 442 NOTICE of Substitution of Counsel by Mary Byrd Ferrara on behalf of Phil Bredesen, Department of Children's Services, George W. Hattaway, Viola Miller, Donald Sundquist (Ferrara, Mary) Modified text on 7/11/2012 (hb). (Entered: 07/10/2012)

10/05/2012 443 NOTICE of Appearance by Martha A. Campbell on behalf of All Defendants (Campbell, Martha) (Entered: 10/05/2012)

10/09/2012 444 STIPULATION of Parties Seeking Court Approval of Proposed October 2012 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A)(Cohen, Melissa) (Entered: 10/09/2012)

10/09/2012

445 ORDER: Status Conference set for 10/24/2012 01:00 PM in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 10/9/2012. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/10/2012)

10/22/2012 446 STIPULATION of One−Time Modification of Section XV.A of the July 2011 Modified Settlement Agreement and Exit Plan and Request for Court Approval by Brian A.. (Cohen, Melissa) (Entered: 10/22/2012)

10/23/2012 447 NOTICE by Phil Bredesen, Department of Children's Services, Viola Miller of Withdrawal and Substitution (Ferrara, Mary) (Entered: 10/23/2012)

10/24/2012

Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 10/24/2012. Follow−up Status Conference scheduled for 1/4/13 at 1:00 p.m. Order to enter. (Court Reporter Cathy Leigh.) (afs) (Entered: 10/24/2012)

10/24/2012

448 JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED OCTOBER 2012 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 10/24/2012. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/24/2012)

10/24/2012

449 STIPULATED ONE−TIME MODIFICATION OF SECTION XV.A OF THE JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND REQUEST FOR COURT APPROVAL. Signed by District Judge Todd J. Campbell on 10/24/2012. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/24/2012)

10/24/2012

450 ORDER: Counsel shall file with the Court a Notice as to what role the Technical Advisory Committee will take with regard to the issues discussed at the hearing. The Court will hold another Status Conference on January 4, 2013, at 1:00 p.m. Nothing herein prevents the parties from requesting a hearing or filing relevant information with the Court. Signed by District Judge Todd J. Campbell on 10/24/2012. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/24/2012)

10/30/2012

451 Transcript filed of Status Conference for date of October 24, 2012 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE

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MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/6/2012. Redaction Request due 11/20/2012. Redacted Transcript Deadline set for 11/30/2012. Release of Transcript Restriction set for 1/28/2013. (cl) (Entered: 10/30/2012)

11/09/2012 452 NOTICE by Brian A. as to the Role of the Technical Assistance Committee (Cohen, Melissa) (Entered: 11/09/2012)

11/28/2012 453 Joint MOTION to Continue Status Conference by Brian A.. (Cohen, Melissa) (Entered: 11/28/2012)

11/29/2012

454 ORDER granting 453 Joint MOTION to Continue Status Conference. Status Conference RESET for 1/25/2013 03:30 PM in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 11/29/2012. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 11/29/2012)

01/02/2013 455 NOTICE of Filing by Brian A. of the Supplemental Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Supplemental Monitoring Report)(Cohen, Melissa) (Entered: 01/02/2013)

01/10/2013 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan by Brian A.. (Attachments: # 1 Exhibit A)(Cohen, Melissa) (Entered: 01/10/2013)

01/10/2013 457 MOTION for Leave to File Document Under Seal by Brian A.. (Cohen, Melissa) (Entered: 01/10/2013)

01/10/2013 458 Sealed Document filed by Brian A.. (Cohen, Melissa) (Entered: 01/10/2013)

01/10/2013 459 Sealed Document filed by Brian A.. (Cohen, Melissa) (Entered: 01/10/2013)

01/10/2013 460 Sealed Document filed by Brian A.. (Cohen, Melissa) (Entered: 01/10/2013)

01/10/2013

461 DECLARATION of Ira Lustbader filed by Brian A. re: 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit K, # 9 Exhibit L, # 10 Exhibit M, # 11 Exhibit N, # 12 Exhibit O, # 13 Exhibit P)(Cohen, Melissa) (Entered: 01/10/2013)

01/11/2013

462 ORDER granting 457 Motion for Leave to File Document Under Seal, pending further Order of the Court. Signed by District Judge Todd J. Campbell on 1/11/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/11/2013)

01/11/2013

463 CERTIFICATE Certificate of Service filed by Brian A. re 461 Declaration, filed by Brian A., 457 MOTION for Leave to File Document Under Seal filed by Brian A., 460 Sealed Document filed by Brian A., 459 Sealed Document filed by Brian A., 458 Sealed Document filed by Brian A., 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan filed by Brian A.. (Cohen, Melissa) (Entered: 01/11/2013)

01/11/2013

464 ORDER: Pending before the Court is Plaintiffs' Motion for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A Exit Plan (Docket No. 456 ). Defendants shall file a Response to this Motion by January 24, 2013. The Motion will be discussed at the Status Conference on January 25, 2013. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 1/11/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/11/2013)

01/11/2013

At DE 456 & 461 , counsel failed to include the mandatory description of the attached exhibits. The exhibits shall be RESUBMITTED by filing a Notice of Filing and attaching the exhibits with the mandatory brief description. (EXAMPLE: Attachments: # 1 Exhibit 1 Police Report dated 1/1/06, # 2 Exhibit 2−Unreported Case Smith v. Jones). (hb) (Entered: 01/11/2013)

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01/11/2013
01/11/2013
01/14/2013 01/15/2013 01/24/2013 01/24/2013 01/24/2013 01/25/2013 01/25/2013 01/25/2013 01/25/2013
01/28/2013

465 NOTICE of Filing by Brian A. re 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan (Attachments: # 1 Exhibit A− Plaintiffs' Memorandum of Law in Support of Their Motion for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan)(Cohen, Melissa) (Entered: 01/11/2013)
466 NOTICE of Filing by Brian A. re 461 Declaration, (Attachments: # 1 Exhibit A− Plaintiffs' Letter dated November 12, 2012, # 2 Exhibit B− Defendants' Email dated November 13, 2012, # 3 Exhibit C− Plaintiffs' Email dated November 13, 2012, # 4 Exhibit D− Defendants' Letter dated November 19, 2012, # 5 Exhibit E− Defendants' Email dated November 21, 2012, # 6 Exhibit G− Plaintiffs' Letter dated November 26, 2012, # 7 Exhibit H− Defendants' Letter dated December 5, 2012, # 8 Exhibit K− Plaintiffs' Letter dated December 19, 2012 Enclosing Proposed Protective Order, # 9 Exhibit L− Defendants' Letter dated December 28, 2012, # 10 Exhibit M− Plaintiffs' Letter dated January 3, 2013, # 11 Exhibit N− Parties' Letter Agreement dated November 10, 2010, # 12 Exhibit O− Defendants' Letter dated January 9, 2013, # 13 Exhibit P− Unreported Case Kenny A. v. Perdue)(Cohen, Melissa) (Entered: 01/11/2013)
467 NOTICE of Appearance by Jonathan P. Lakey on behalf of All Defendants (Lakey, Jonathan) (Entered: 01/14/2013)
BAR STATUS for Atty. Jonathan P. Lakey of TN verified as active on this date. (hb) (Entered: 01/15/2013)
468 STIPULATION re 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan Jointly Proposed by Brian A.. (Cohen, Melissa) (Entered: 01/24/2013)
469 NOTICE of Filing by Brian A. of the Jointly Proposed Agreed Protective Order (Attachments: # 1 Agreed Protective Order)(Cohen, Melissa) (Entered: 01/24/2013)
470 RESPONSE to Motion re 456 MOTION for Discovery for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A. Exit Plan filed by Phil Bredesen. (Campbell, Martha) (Entered: 01/24/2013)
471 NOTICE of Filing by Brian A. of a Supplemental Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Supplemental Monitoring Report)(Cohen, Melissa) (Entered: 01/25/2013)
Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 1/25/2013. Next status conference to be held 4/29/13. (2/hrs/14 mins)(Court Reporter Cathy Leigh.)(Bush, Doris) (Entered: 01/25/2013)
472 AGREED PROTECTIVE ORDER. Signed by District Judge Todd J. Campbell on 1/25/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af) (Entered: 01/28/2013)
473 JOINT STIPULATION CONCERNING PLAINTIFFS' MOTION FOR ACCESS TO INFORMATION REGARDING CHILD FATALITIES NECESSARY TO ENSURE COMPLIANCE WITH THE BRIAN A. EXIT PLAN (DKT. NO. 456). Signed by District Judge Todd J. Campbell on 1/25/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af) (Entered: 01/28/2013)
474 ORDER: The Court held a Status Conference on January 25, 2013, at which the pending Motion for Access to Information Regarding Child Fatalities Necessary to Ensure Compliance with the Brian A Exit Plan (Docket No. 456) and related matters were discussed. In light of the deadlines set forth in the parties' Joint Stipulation concerning the pending Motion, which the Court has signed and entered, the parties shall file with the Court a Notice as to compliance with paragraph 1 of the Joint Stipulation by February 4, 2013. The parties shall file with the Court a Notice as to compliance with paragraph 2 of the Joint Stipulation by April 25, 2013. The Court will hold another status conference on April 29, 2013, at 11:00 a.m. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 1/28/13. (af) (Entered: 01/28/2013)

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01/28/2013
02/04/2013 02/04/2013 02/04/2013
02/05/2013 02/08/2013 02/08/2013 02/08/2013 02/20/2013

475 Transcript filed of Status Conference for date of January 25, 2013 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 2/4/2013. Redaction Request due 2/19/2013. Redacted Transcript Deadline set for 2/28/2013. Release of Transcript Restriction set for 4/29/2013. (cl) (Entered: 01/28/2013)
476 NOTICE by Brian A. Pursuant to the Court's Order Dated January 28, 2013 (Dkt. No. 474) (Cohen, Melissa) (Entered: 02/04/2013)
477 Joint MOTION for Leave to File Document Under Seal by Brian A.. (Cohen, Melissa) (Entered: 02/04/2013)
478 Sealed Document Joint Notice Pursuant to the Court's Order Dated January 28, 2013 (Dkt. No. 474) filed by Brian A.. (Attachments: # 1 Exhibit A−1 2011 Class Member Fatalities − Part 1, # 2 Exhibit A−2 2011 Class Member Fatalities − Part 2, # 3 Exhibit A−3 2012 Class Member Fatalities − Part 1, # 4 Exhibit A−4 2012 Class Member Fatalities − Part 2, # 5 Exhibit B − Redacted Fatality Review Meeting Notes, # 6 Exhibit C − Child Fatalities Summary Spreadsheets, # 7 Exhibit D−1 2011 Non−Custodial Fatalities − Part 1, # 8 Exhibit D−2 2011 Non−Custodial Fatalities − Part 2, # 9 Exhibit D−3.1 2011 Non−Custodial Fatalities − Part 3.1, # 10 Exhibit D−3.2 2011 Non−Custodial Fatalities − Part 3.2, # 11 Exhibit D−4.1 2011 Non−Custodial Fatalities − Part 4.1, # 12 Exhibit D−4.2 2011 Non−Custodial Fatalities − Part 4.2, # 13 Exhibit D−5.1 2011 Non−Custodial Fatalities − Part 5.1, # 14 Exhibit D−5.2 2011 Non−Custodial Fatalities − Part 5.2, # 15 Exhibit D−6.1 2011 Non−Custodial Fatalities − Part 6.1, # 16 Exhibit D−6.2 2011 Non−Custodial Fatalities − Part 6.2, # 17 Exhibit D−7 2012 Non−Custodial Fatalities − Part 1, # 18 Exhibit D−8 2012 Non−Custodial Fatalities − Part 2, # 19 Exhibit D−9 2012 Non−Custodial Fatalities − Part 3, # 20 Exhibit D−10 2012 Non−Custodial Fatalities − Part 4, # 21 Exhibit D−11 2012 Non−Custodial Fatalities − Part 5, # 22 Exhibit D−12 2012 Non−Custodial Fatalities − Part 6, # 23 Exhibit D−13.1 2012 Non−Custodial Fatalities − Part 7.1, # 24 Exhibit D−13.2 2012 Non−Custodial Fatalities − Part 7.2)(Cohen, Melissa) (Entered: 02/04/2013)
479 ORDER granting 477 Motion for Leave to File Document Under Seal. Signed by District Judge Todd J. Campbell on 2/5/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 02/05/2013)
480 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Proposed Order Proposed Order for Fees)(Cohen, Melissa) (Entered: 02/08/2013)
481 AFFIDAVIT re 480 MOTION for Attorney Fees and Expenses of Ira Lustbader by Brian A.. (Attachments: # 1 Exhibit A− Summary Charts, # 2 Exhibit B− Monitoring Timeslips, # 3 Exhibit C− Expenses, # 4 Exhibit D− Fees on Fees Timeslips, # 5 Exhibit E− Attorney Resumes)(Cohen, Melissa) (Entered: 02/08/2013)
482 ORDER granting 480 Motion for Attorney Fees. Within 30 days of the entry of this ORDER, Defendants shall pay a total of $153,687.69 to Children's Rights, in complete payment and settlement of all fees and expenses for the period from August 1, 2011 to July 31, 2012. Signed by District Judge Todd J. Campbell on 2/8/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 02/08/2013)
483 NOTICE by Brian A. re 474 Order, Set Hearings,,,,,, Second Joint Notice Pursuant to the Court's Order Dated January 28, 2013 (Cohen, Melissa) (Entered: 02/20/2013)

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04/02/2013 04/03/2013 04/10/2013 04/11/2013 04/12/2013 04/12/2013
04/25/2013 04/29/2013 04/29/2013 06/24/2013 06/24/2013
07/02/2013

484 NOTICE of Filing by Brian A. of the Report of the Brian A. Technical Assistance Committee on its Evaluation of TFACTS (Attachments: # 1 Report of the Brian A. Technical Assistance Committee on its Evaluation of TFACTS)(Cohen, Melissa) (Entered: 04/02/2013)
485 NOTICE by Department of Children's Services re 474 Order (Campbell, Martha) Modified text on 4/4/2013 (hb). (Entered: 04/03/2013)
487 Letter to the Court re Status Conference from Andy Shookhoff, Technical Assistance Committee. (hb) (Entered: 04/11/2013)
486 ***VACATE PER ORDER 489 *** ORDER: Status Conference continued until 5/14/2013 01:00 PM in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 4/11/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) Modified text on 4/12/2013 (hb). (Entered: 04/11/2013)
488 Joint MOTION to Continue Status Conference by Brian A.. (Cohen, Melissa) (Entered: 04/12/2013)
489 ORDER: Pending before the Court is a Joint Motion to Reschedule Status Conference (Docket No. 488 ). The Motion is DENIED because the suggested dates are not available due to a criminal trial. The Court's recent Order (Docket No. 486 ) is VACATED, and the Status Conference is reset to the original date of April 29, 2013, at 11:00 a.m. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 4/12/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/12/2013)
490 NOTICE of Filing by Department of Children's Services (Fourth) (Attachments: # 1 Exhibit Ex 1 DCS Child Death Response & Review 4−25−13)(Campbell, Martha) (Entered: 04/25/2013)
Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 4/29/2013.(Court Reporter Cathy Leigh.)(Bush, Doris) (Entered: 04/29/2013)
491 ORDER: Status Conference set for 9/9/2013 12:00 NOON before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 4/29/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/29/2013)
492 NOTICE of Filing by Brian A. of Monitoring Report of the Technical Assistance Committee (Attachments: # 1 Attachment Monitoring Report 10 of the Technical Assistance Committee, # 2 Attachment Appendices to Monitoring Report 10 of the Technical Assistance Committee)(Cohen, Melissa) (Entered: 06/24/2013)
493 Transcript filed of Status Conference for date of April 29, 2013 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 7/1/2013. Redaction Request due 7/15/2013. Redacted Transcript Deadline set for 7/25/2013. Release of Transcript Restriction set for 9/23/2013. (cl) (Entered: 06/24/2013)
494 ORDER: Status Conference RESET for 9/6/2013 12:00 NOON before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 7/2/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/02/2013)

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07/05/2013 09/16/2013 09/16/2013 09/17/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 01/27/2014 02/06/2014
02/10/2014

495 ORDER: Status Conference is re−set for 9/19/2013 at noon. Signed by District Judge Todd J. Campbell on 7/5/13. (dt) (Entered: 07/05/2013)
496 STIPULATION by Brian A.. (Attachments: # 1 Exhibit A − August 25, 2013 Letter from TAC Regarding Maintenance Designations, # 2 Exhibit B − Proposed September 2013 Modified Settlement Agreement and Exit Plan, # 3 Exhibit C − Proposed September 2013 Modified Settlement Agreement and Exit Plan with Redlined Changes)(Cohen, Melissa) (Entered: 09/16/2013)
497 STIPULATION Proposed Stipulated One−Time Modification of Section XV.A of the October 2012 Modified Settlement Agreement and Exit Plan and Request for Court Approval by Brian A.. (Cohen, Melissa) (Entered: 09/16/2013)
498 NOTICE of Filing by Department of Children's Services (Attachments: # 1 Attachment TAC updated TFACTS report of 9−17−13)(Campbell, Martha) (Entered: 09/17/2013)
499 JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 9/19/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2013)
500 SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 9/19/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2013)
501 STIPULATED ONE−TIME MODIFICATION OF SECTION XV.A OF THE OCTOBER 2012 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND REQUEST FOR COURT APPROVAL. Signed by District Judge Todd J. Campbell on 9/19/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2013)
502 ORDER: Status Conference set for 6/6/2014 12:00 NOON in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 9/19/2013. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/19/2013)
Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 9/19/2013.(1hr/6 mins)(Court Reporter Cathy Leigh.)(Bush, Doris) (Entered: 09/19/2013)
503 ORDER: The State of Tennessee has issued a performance audit of the Department of Children's Services, dated January 2014. The parties should review the audit and be prepared to raise any concerns or suggestions at the June 6, 2014 Status Conference. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 1/27/2014. (hb) (Entered: 01/27/2014)
504 Transcript filed of Status Conference for date of September 19, 2013 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 2/13/2014. Redaction Request due 2/27/2014. Redacted Transcript Deadline set for 3/10/2014. Release of Transcript Restriction set for 5/7/2014. (cl) (Entered: 02/06/2014)
505 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Proposed Order for Attorneys' Fees and Expenses)(Cohen, Melissa) (Entered: 02/10/2014)

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02/10/2014
02/10/2014 02/11/2014 02/20/2014 03/26/2014 03/27/2014
04/08/2014 04/08/2014
04/18/2014 05/09/2014 06/02/2014
06/06/2014 06/06/2014 06/09/2014 06/10/2014 06/12/2014
06/12/2014

506 DECLARATION of Ira Lustbader filed by Brian A. re: 505 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A − Summary Charts of Fees and Expenses, # 2 Exhibit B − Monitoring Timeslips, # 3 Exhibit C − Expenses, # 4 Exhibit D − Fees on Fees Timeslips, # 5 Exhibit E − Attorney Resumes)(Cohen, Melissa) (Entered: 02/10/2014)
507 DECLARATION of Jacqueline Dixon filed by Brian A. re: 505 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A − Dixon Timesheet, # 2 Exhibit B − Dixon Resume)(Cohen, Melissa) (Entered: 02/10/2014)
508 ORDER granting 505 Motion for Attorney Fees. Signed by District Judge Todd J. Campbell on 2/11/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 02/11/2014)
509 Letter to the Court from Sharonita L. Liles. (hb) (Entered: 02/21/2014)
510 MOTION to Continue June 6, 2014 Status Conference by Department of Children's Services. (Campbell, Martha) (Entered: 03/26/2014)
511 ORDER: Pending before the Court is Defendants' Unopposed Motion to Reschedule the June 6, 2014, Status Conference to June 17, 2014, if Available (Docket No. 51 0). The Motion is DENIED as the June 17, 2014 date is not available. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 3/27/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 03/27/2014)
512 MOTION to Continue June 6, 2014 Status Conference by Department of Children's Services. (Campbell, Martha) (Entered: 04/08/2014)
513 ORDER: Pending before the Court is Defendants' Unopposed Motion to Reschedule the June 6, 2014 Status Conference (Docket No. 512 ). The Motion is GRANTED, and the Status Conference set for June 6, 2014, is rescheduled until June 20, 2014, at 3:00 p.m. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 4/8/2014. (hb) (Entered: 04/08/2014)
514 NOTICE by Brian A. Notice of Withdrawal of Appearance of Melissa Cohen (Cohen, Melissa) (Entered: 04/18/2014)
515 NOTICE of Filing by Department of Children's Services (Attachments: # 1 Attachment 2013 DCS Child Death Review Annual Report)(Campbell, Martha) (Entered: 05/09/2014)
516 NOTICE of Filing by Department of Children's Services of TAC Monitoring Report May 31, 2014 (Attachments: # 1 Attachment TAC Monitoring Report May 31, 2014, # 2 Attachment Appendices to Monitoring Report of May 31, 2014)(Campbell, Martha) (Entered: 06/02/2014)
517 MOTION for attorney(s) Sarah Teresa Russo to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Brian A.. (Dixon, Jacqueline) (Entered: 06/06/2014)
518 CERTIFICATE OF GOOD STANDING of Attorney Sarah Teresa Russo from the United States District Court for the Southern of NY filed by Brian A.. (Dixon, Jacqueline) (Entered: 06/06/2014)
BAR STATUS for Atty. Sarah Teresa Russo of NY verified as active on this date. (hb) (Entered: 06/09/2014)
519 RECEIPT #34675031915 in the amount of $75 re 517 Motion to Appear Pro Hac Vice. (hb) (Entered: 06/10/2014)
520 ORDER granting 517 Motion for Sarah Teresa Russo to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 6/12/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 06/12/2014)
521 NOTICE of Filing by Department of Children's Services of the TAC TFACTS update dated June 11, 2014 (Attachments: # 1 Attachment TAC TFACTS update dated June 11, 2014)(Campbell, Martha) (Entered: 06/12/2014)

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06/12/2014 522 NOTICE of Filing by Department of Children's Services of the DCS Response to the January 2014 Performance Audit (Attachments: # 1 Attachment DCS Response to the January 2014 Performance Audit)(Campbell, Martha) (Entered: 06/12/2014)

06/23/2014

523 ORDER: The Court held a hearing in this case on June 20, 2014. The Court will hold a further status conference in this case on September 19, 2014, at 3:00 p.m. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 6/20/2014. (hb) (Entered: 06/23/2014)

06/23/2014

Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 6/23/2014. (Court Reporter Cathy Leigh.) (afs) (Entered: 06/23/2014)

06/28/2014

524 Transcript filed of Status Conference for date of June 20, 2014 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 7/7/2014. Redaction Request due 7/21/2014. Redacted Transcript Deadline set for 7/29/2014. Release of Transcript Restriction set for 9/26/2014. (cl) (Entered: 06/28/2014)

09/02/2014

525 STIPULATION Joint Stipulation Seeking Court Approval of Proposed September 2014 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A − TAC Supplement to the May 31, 2014 Monitoring Report, # 2 Exhibit B − Proposed September 2014 Modified Settlement Agreement and Exit Plan, # 3 Exhibit C − Proposed September 2014 Modified Settlement Agreement and Exit Plan − redline)(Russo, Sarah) (Entered: 09/02/2014)

09/02/2014 526 STIPULATION Proposed Stipulated One−Time Modification of Section XV.A of the September 2013 Modified Settlement Agreement and Exit Plan and Request for Court Approval by Brian A.. (Russo, Sarah) (Entered: 09/02/2014)

09/18/2014

527 NOTICE of Filing by Brian A. of the TAC Supplement Related to Case Loads and Case Load Reporting and Addendum to the August 27 Supplement to the Monitoring Report (Attachments: # 1 Exhibit 1: TAC Supplement Related to Case Loads and Case Load Reporting, # 2 Exhibit 2: TAC Addendum to the August 27 Supplement to the Monitoring Report)(Russo, Sarah) (Entered: 09/18/2014)

09/19/2014

Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 9/19/2014. Orders to enter.(Court Reporter Cathy Leigh.)(Bush, Doris) (Entered: 09/19/2014)

09/19/2014

528 ORDER: Status Conference set for 4/13/2015 01:00 PM in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 9/19/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/22/2014)

09/19/2014

529 STIPULATED ONE−TIME MODIFICATION OF SECTION XV.A OF THE SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND REQUEST FOR COURT APPROVAL. Signed by District Judge Todd J. Campbell on 9/19/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/22/2014)

09/19/2014

530 JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED SEPTEMBER 2014 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 9/19/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 09/22/2014)

09/28/2014 531 Transcript of Status Conference filed for date of September 19, 2014 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544,
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cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 10/6/2014. Redaction Request due 10/20/2014. Redacted Transcript Deadline set for 10/29/2014. Release of Transcript Restriction set for 12/29/2014. (cl) (Entered: 09/28/2014)

12/18/2014 532 STIPULATION Proposed Joint Stipulated Modification of September 19, 2014 Order and Request for Court Approval by Brian A.. (Russo, Sarah) (Entered: 12/18/2014)

12/18/2014 533 STIPULATION Corrected Proposed Joint Stipulated Modification of September 19, 2014 Order and Request for Court Approval by Brian A.. (Russo, Sarah) (Entered: 12/18/2014)

12/19/2014

534 JOINT STIPULATED MODIFICATION OF SEPTEMBER 19, 2014 ORDER AND REQUEST FOR COURT APPROVAL. Signed by District Judge Todd J. Campbell on 12/19/2014. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 12/19/2014)

01/30/2015 535 NOTICE of Filing by Brian A. of the Brian A. Technical Assistance Committee Supplemental Report (Attachments: # 1 Exhibit 1: Brian A. Technical Assistance Committee Supplemental Report)(Russo, Sarah) (Entered: 01/30/2015)

03/26/2015 536 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit A: Proposed Order for Attorneys' Fees and Expenses)(Russo, Sarah) (Entered: 03/26/2015)

03/26/2015

537 DECLARATION of Ira Lustbader filed by Brian A. re: 536 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A: Summary Charts of Fees and Expenses, # 2 Exhibit B: Monitoring Timeslips, # 3 Exhibit C: Expenses, # 4 Exhibit D: Fees on Fees Timeslips, # 5 Exhibit E: Attorney Resumes)(Russo, Sarah) (Entered: 03/26/2015)

03/27/2015

538 ORDER granting 536 Motion for Attorney Fees. Within 30 days of the entry of this ORDER, Defendants shall pay a total of $186,676.94 to Children's Rights, in complete payment and settlement of all fees and expenses for the period from November 1, 2013 to October 31, 2014. Signed by District Judge Todd J. Campbell on 3/27/2015. (hb) (Entered: 03/27/2015)

04/07/2015

539 STIPULATION Joint Stipulation Seeking Court Approval of Proposed April 2015 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A: TAC Supplement to the Jan. 30, 2015 Monitoring Report, # 2 Exhibit B: Proposed April 2015 Modified Settlement Agreement and Exit Plan, # 3 Exhibit C: Proposed April 2015 Modified Settlement Agreement and Exit Plan − Redline)(Russo, Sarah) (Entered: 04/07/2015)

04/13/2015

Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 4/13/2015. Order to enter. (Court Reporter Martha Denton.) (afs) (Entered: 04/13/2015)

04/13/2015

540 APRIL 2015 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 4/13/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/13/2015)

04/13/2015

541 ORDER: Status Conference set for 10/5/2015 01:00 PM in Courtroom 874 before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 4/13/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/13/2015)

04/20/2015 542 Transcript filed for dates of 4/13/15 before Judge Todd J. Campbell. Court Reporter/Transcriber: Martha Denton (615) 758−7409. Transcript may be viewed at
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06/23/2015 06/23/2015 07/31/2015 09/30/2015 10/05/2015 10/05/2015 10/05/2015 10/09/2015
01/28/2016

the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 4/27/2015. Redaction Request due 5/11/2015. Redacted Transcript Deadline set for 5/21/2015. Release of Transcript Restriction set for 7/20/2015. (af) (Entered: 04/20/2015)
543 Joint MOTION for Extension of Time to File Monitoring Report 13 by Brian A.. (Attachments: # 1 Exhibit A: Excerpt of Transcript from April 13, 2015 Status Conference)(Russo, Sarah) (Entered: 06/23/2015)
544 ORDER: Pending before the Court is a Joint Consent Motion for Approval to Extend Time to File Monitoring Report (Docket No. 543 ). The Motion is GRANTED, and the Monitoring Report shall be filed by July 31, 2015. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 6/23/2015. (hb) (Entered: 06/23/2015)
545 NOTICE of Filing by Brian A. of the Brian A. Technical Assistance Committee Monitoring Report (Attachments: # 1 Exhibit 1: Brian A. Technical Assistance Committee Monitoring Report, # 2 Exhibit 2: Appendices to the Monitoring Report)(Russo, Sarah) (Entered: 07/31/2015)
546 STIPULATION Joint Stipulation Seeking Court Approval of Proposed September 2015 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A: TAC Supplement to the July 31, 2015 Monitoring Report, # 2 Exhibit B: Proposed September 2015 Modified Settlement Agreement and Exit Plan, # 3 Exhibit C: Proposed September 2015 Modified Settlement Agreement and Exit Plan − Redline)(Russo, Sarah) (Entered: 09/30/2015)
547 SEPTEMBER 2015 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 10/5/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/05/2015)
548 ORDER: Status Conference set for 4/11/2016 11:00 AM before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 10/5/2015. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/05/2015)
Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 10/5/2015. (Court Reporter Cathy Leigh.) (afs) (Entered: 10/05/2015)
549 Transcript filed of Status Conference for date of October 6, 2015 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 10/16/2015. Redaction Request due 10/30/2015. Redacted Transcript Deadline set for 11/9/2015. Release of Transcript Restriction set for 1/7/2016. (cl) (Entered: 10/09/2015)
550 Joint MOTION for Extension of Time to File Monitoring Report 14 by Brian A.. (Attachments: # 1 Exhibit A: Excerpt of Transcript from Oct. 5, 2015 Status Conference)(Russo, Sarah) (Entered: 01/28/2016)

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01/28/2016 02/08/2016 04/04/2016 04/04/2016
04/11/2016 04/11/2016 04/11/2016 04/21/2016
04/26/2016 04/26/2016 04/27/2016 05/26/2016 07/26/2016

551 ORDER granting 550 Motion for Extension of Time to File. Signed by District Judge Todd J. Campbell on 01/28/2016. (vh) (Entered: 01/28/2016)
552 NOTICE of Filing by Brian A. of the Brian A. Technical Assistance Committee Monitoring Report (Attachments: # 1 Exhibit 1: Brian A. Technical Assistance Committee Monitoring Report)(Russo, Sarah) (Entered: 02/08/2016)
553 NOTICE of Filing by Department of Children's Services Information Requested by the Court (Campbell, Martha) (Entered: 04/04/2016)
554 STIPULATION Joint Stipulation Seeking Court Approval of Proposed April 2016 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A: TAC Supplement to the February 8, 2016 Monitoring Report, # 2 Exhibit B: Proposed April 2016 Modified Settlement Agreement and Exit Plan, # 3 Exhibit C: Proposed April 2016 MSA and Exit Plan − Redline)(Russo, Sarah) (Entered: 04/04/2016)
Minute Entry for proceedings held before District Judge Todd J. Campbell: Status Conference held on 4/11/2016. Next status conference to be held 9/22/16. Order to enter.(Court Reporter Cathy Leigh.)(db) (Entered: 04/11/2016)
555 APRIL 2016 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by District Judge Todd J. Campbell on 4/11/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/11/2016)
556 ORDER: Status Conference set for 9/22/2016 at 3:00 PM before District Judge Todd J. Campbell. Signed by District Judge Todd J. Campbell on 4/11/16. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 04/11/2016)
557 Transcript filed of Status Conference for date of April 11, 2016 before Judge Todd J. Campbell. Court Reporter: Cathy Leigh, 615−512−7544, cathy_leigh@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 4/28/2016. Redaction Request due 5/12/2016. Redacted Transcript Deadline set for 5/23/2016. Release of Transcript Restriction set for 7/20/2016. (cl) (Entered: 04/21/2016)
558 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit A: Proposed Order for Attorneys' Fees and Expenses)(Russo, Sarah) (Entered: 04/26/2016)
559 DECLARATION of Ira Lustbader filed by Brian A. re: 558 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A: Summary Charts of Fees and Expenses, # 2 Exhibit B: Monitoring Timeslips, # 3 Exhibit C: Expenses, # 4 Exhibit D: Fees on Fees Timeslips, # 5 Exhibit E: Attorney Resumes)(Russo, Sarah) (Entered: 04/26/2016)
560 ORDER granting 558 MOTION for Attorney Fees and Expenses. Signed by District Judge Todd J. Campbell on 4/27/2016. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/27/2016)
561 NOTICE of Change of Address by Sarah Teresa Russo (Russo, Sarah) (Entered: 05/26/2016)
562 NOTICE of Filing by Department of Children's Services Joint Notice of Filing (Attachments: # 1 Exhibit TAC report 7−25−16)(Campbell, Martha) (Entered: 07/26/2016)

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09/08/2016 563 ORDER: Because of scheduling conflicts, the Status Conference set for September 22, 2016, is continued until October 5th at 12:00 noon. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 9/8/2016. (hb) (Entered: 09/09/2016)

09/12/2016 564 Joint MOTION to Continue Status Conference by Brian A.. (Russo, Sarah) (Entered: 09/12/2016)

09/13/2016

565 ORDER: Pending before the Court is a Joint Motion to Reschedule Status Conference (Docket No. 564 ). The Motion is GRANTED, and the Status Conference set for October 5, 2016, is CONTINUED until November 18, 2016, at 2:00 p.m. By November 1, 2016, the parties shall file written summaries of the status of the case. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 9/13/2016. (hb) Modified text on 9/13/2016 (hb). (Entered: 09/13/2016)

09/16/2016 566 NOTICE by Brian A. Notice of Withdrawal of Appearance of Sarah Russo (Russo, Sarah) (Entered: 09/16/2016)

11/01/2016 567 NOTICE of Filing by Department of Children's Services of the Status of the Case (Campbell, Martha) (Entered: 11/01/2016)

11/01/2016 568 NOTICE of Filing by Brian A. Plaintiffs' Status Report (Russo, Sarah) (Entered: 11/01/2016)

11/14/2016

569 ORDER: The parties have filed Status Reports (Docket Nos. 567 and 568 ). The hearing scheduled for November 18, 2016, is CANCELLED. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 11/14/2016. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 11/14/2016)

01/10/2017

Case Reassigned to District Judge Waverly D. Crenshaw, Jr. District Judge Todd J. Campbell no longer assigned to the case per his retirement. (af) (Entered: 01/10/2017)

01/18/2017 570 MOTION for attorney(s) Daniele Gerard to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−2362025) by Brian A.. (Attachments: # 1 Attachment Certificate of Good Standing from USDC/SDNY)(Lustbader, Ira) (Entered: 01/18/2017)

01/19/2017 571 ORDER granting 570 Motion for atty Daniele Gerard to Appear Pro Hac Vice. Signed by Magistrate Judge Joe Brown on 1/19/17. (rd) (Entered: 01/19/2017)

01/19/2017

NY State Bar status verified as active for Daniele Gerard. (hb) (Entered: 01/19/2017)

02/02/2017

572 ORDER: Status Conference set for 5/26/2017 09:00 AM in Courtroom A859 before District Judge Waverly D. Crenshaw Jr. Signed by District Judge Waverly D. Crenshaw, Jr on 2/2/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 02/03/2017)

03/16/2017 573 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit A: Proposed Order for Attorneys' Fees and Expenses)(Lustbader, Ira) (Entered: 03/16/2017)

03/16/2017

574 DECLARATION of Ira Lustbader filed by Brian A. re: 573 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A: Summary Charts of Fees and Expenses, # 2 Exhibit B: Monitoring Timeslips, # 3 Exhibit C: Expenses, # 4 Exhibit D: Fees on Fees Timeslips, # 5 Exhibit E: Attorney Resumes)(Lustbader, Ira) (Entered: 03/16/2017)

04/04/2017 575 NOTICE of Appearance by Alexander Stuart Rieger on behalf of All Defendants (Rieger, Alexander) (Entered: 04/04/2017)

04/04/2017 576 NOTICE of Filing by Brian A. of the Brian A. Technical Assistance Committee Monitoring Report (Attachments: # 1 Exhibit 1: Brian A. Technical Assistance Committee Monitoring Report)(Lustbader, Ira) (Entered: 04/04/2017)

04/05/2017

TN State Bar status verified as active for Alexander Stuart Rieger. (hb) (Entered: 04/05/2017)

04/05/2017 577 ORDER granting 573 MOTION for Attorney Fees and Expenses. Within 30 days of the entry of this ORDER, Defendants shall pay a total of $135,231.47 to Children's Rights, in complete payment and settlement of all fees and expenses for the period
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from November 1, 2015 to October 31, 2016. Signed by District Judge Waverly D. Crenshaw, Jr on 4/5/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 04/05/2017)

05/15/2017 578 NOTICE of Filing by Brian A. of the Brian A. Technical Assistance Committee Monitoring Report (Attachments: # 1 Exhibit 1: Brian A. Technical Assistance Committee Monitoring Report)(Lustbader, Ira) (Entered: 05/15/2017)

05/16/2017

579 STIPULATION Joint Stipulation Seeking Court Approval of Proposed April 2017 Modified Settlement Agreement and Exit Plan by Brian A.. (Attachments: # 1 Exhibit A: Proposed April 2017 Modified Settlement Agreement and Exit Plan, # 2 Exhibit B: Format and Content Areas of the External Accountability Center)(Gerard, Daniele) (Entered: 05/16/2017)

05/19/2017

580 ORDER: Due to the Court's schedule, the status conference is RESCHEDULED for May 30, 2017 at 2:00 p.m IT IS SO ORDERED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/19/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/22/2017)

05/22/2017 581 Joint MOTION to Continue Status Conference by Phil Bredesen, Department of Children's Services, Viola Miller. (Rieger, Alexander) (Entered: 05/22/2017)

05/24/2017

582 ORDER: The Joint Motion to Reschedule Status Conference (Doc. No. 581 ) is GRANTED. The status conference currently scheduled for May 30, 2017 is RESCHEDULED for June 8, 2017, at 9:00 a.m. IT IS SO ORDERED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/24/2017. (hb) (Entered: 05/24/2017)

06/06/2017 583 NOTICE by Phil Bredesen, Department of Children's Services, Viola Miller, Donald Sundquist Notice of Compliance (Attachments: # 1 Attachment Proposed Order of Dismissal)(Rieger, Alexander) (Entered: 06/06/2017)

06/07/2017 584 ORDER: The status conference currently scheduled for June 8, 2017, at 9:00 a.m. is RESCHEDULED for 3:00 p.m. on June 8, 2017. IT IS SO ORDERED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/7/2017. (eh) (Entered: 06/07/2017)

06/08/2017

585 ORDER: As discussed at the June 8, 2017 status conference, the parties are ORDERED to file appropriate motions for the relief they seek and a joint status report on or before June 22, 2017, including: (1) a chronology of the case, citing significant case developments with citation to the docket; (2) a synopsis of the case, the underlying claims, class action developments and the progress of compliance with the settlement terms; and (3) the scope of review the Court must give to the motions that the parties submitted and identify the Courts authority to act as requested by the parties. The parties may submit any other significant information that will aid the Court. The parties should keep in mind that undersigned has not had the years of experience with this case as have the parties. IT IS SO ORDERED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/8/17. (af) (Entered: 06/08/2017)

06/08/2017

Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Status Conference held on 6/8/2017. Counsel Present: Jacqueline B. Dixon, Ira P. Lustbader, Daniele Gerard, Jonathan P. Lakey and Alexander Stuart Rieger. Court to take matter under advisement. Order to enter. (Court Reporter Lise Matthews.) (afs) (Entered: 06/09/2017)

06/12/2017

586 Transcript filed for date of June 8, 2017 before Judge Waverly D. Crenshaw Jr.. Court Reporter: Lise Matthews, 615−589−7601, lise_matthews@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 6/19/2017. Redaction Request due 7/3/2017. Redacted Transcript Deadline set for 7/13/2017. Release of Transcript

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06/22/2017 07/17/2017 07/17/2017 11/08/2017 11/08/2017 11/27/2017
12/14/2017 06/07/2018 12/19/2018 01/16/2019 01/16/2019 01/17/2019

Restriction set for 9/11/2017. (Matthews, Lise) (Entered: 06/12/2017)
587 JOINT MOTION for an Order Partially Terminating Jurisdiction and Partially Dismissing Case With Prejudice. (Attachments: # 1 Exhibit A: Performance Measures/Required Provisions, # 2 Exhibit B: Factual Examples of Compliance)(Lustbader, Ira) Modified on 6/23/2017 (dt). (Entered: 06/22/2017)
588 APRIL 2017 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/17/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/17/2017)
589 ORDER PARTIALLY TERMINATING JURISDICTION AND PARTIALLY DISMISSING CASE WITH PREJUDICE. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/17/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/18/2017)
590 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit A: Proposed Order for Attorneys' Fees and Expenses)(Lustbader, Ira) (Entered: 11/08/2017)
591 DECLARATION of Ira Lustbader filed by Brian A. re: 590 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A: Summary Charts of Fees and Expenses, # 2 Exhibit B: Monitoring Timeslips, # 3 Exhibit C: Expenses, # 4 Exhibit D: Fees on Fees Timeslips, # 5 Exhibit E: Attorney Resumes)(Lustbader, Ira) (Entered: 11/08/2017)
592 ORDER: Having duly considered all papers submitted in connection with Plaintiffs' motion for approval of attorneys' fees and expenses, the Court hereby GRANTS Plaintiffs' Unopposed Motion (Doc. No. 590 ) pursuant to Section XX of the April 2017 Modified Settlement Agreement and Exit Plan (Doc. No. 588 ), Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Within thirty days of the entry of this Order, Defendants shall pay a total of $226,428.63 to Children's Rights, in complete payment and settlement of all attorneys' fees and expenses for the period from November 1, 2016 to July 18, 2017. Signed by Chief Judge Waverly D. Crenshaw, Jr on 11/27/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/27/2017)
593 NOTICE of Filing by Brian A. of the External Accountability Center Report No. 1 (Attachments: # 1 Exhibit 1: Brian A. External Accountability Center Report No. 1)(Lustbader, Ira) (Entered: 12/14/2017)
594 NOTICE of Filing by Brian A. of the External Accountability Center Report No. 2 (Attachments: # 1 Exhibit 1: Brian A. External Accountability Center Report No. 2)(Lustbader, Ira) (Entered: 06/07/2018)
595 NOTICE of Filing by Brian A. of the External Accountability Center Report No. 3 (Attachments: # 1 Exhibit 1: Brian A. External Accountability Center Report No. 3)(Lustbader, Ira) (Entered: 12/19/2018)
596 MOTION for Attorney Fees and Expenses by Brian A.. (Attachments: # 1 Exhibit 1: Proposed Order for Attorneys' Fees and Expenses)(Lustbader, Ira) (Entered: 01/16/2019)
597 DECLARATION of Ira Lustbader filed by Brian A. re: 596 MOTION for Attorney Fees and Expenses. (Attachments: # 1 Exhibit A: Summary Charts of Fees and Expenses, # 2 Exhibit B: Monitoring Timeslips, # 3 Exhibit C: Expenses, # 4 Exhibit D: Fees on Fees Timeslips, # 5 Exhibit E: Attorney Resumes)(Lustbader, Ira) (Entered: 01/16/2019)
598 UNOPPOSED NOTICE of Compliance With Section XIX of 2017 Modified Settlement Agreement and Exit Plan, And Request For Entry Of Order Dismissing Case And Terminating Jurisdiction filed by Department of Children's Services. (Attachments: # 1 Exhibit Exhibit A−[proposed] Order Dismissing Case With Prejudice And Terminating Jurisdiction)(Lakey, Jonathan) Modified on 1/18/2019 (dt). (Entered: 01/17/2019)

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01/18/2019
02/19/2019 02/25/2019

599 ORDER granting 596 Motion for Attorney Fees. Within 30 days of the entry of this ORDER, and before the court enters a final order dismissing this action, Defendants shall pay a total of $35,142.84 to Children's Rights, in complete payment and settlement of all fees and expenses for the period from July 19, 2017 to December 31, 2018. Signed by Chief Judge Waverly D. Crenshaw, Jr on 1/18/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 01/18/2019)
600 NOTICE by Department of Children's Services Defendants' Notice of Final Payment of Attorneys' Fees to Plaintiffs' Counsel and Request for Entry of Order Dismissing Case and Terminating Jurisdiction (Lakey, Jonathan) (Entered: 02/19/2019)
601 ORDER: Based on these findings and the entire record in this case, IT IS ORDERED, ADJUDGED AND DECREED that this Court's jurisdiction over this case is hereby TERMINATED and this case is DISMISSED WITH PREJUDICE in all respects. The Court further finds that, as dismissal is based on the merits, this is not a settlement, voluntary dismissal or compromise, and, therefore, separate notice to the class is not required. Signed by Chief Judge Waverly D. Crenshaw, Jr on 2/25/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 02/25/2019)

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

---------------------------------------------------------------x

BRIAN A., by his next friend, Bobbi Jean Brooks; )

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES C., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita

)

Veasy; and

)

TERRY G., by her next friend, Carol Oldham

)

on their own behalf and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

--against--

)

)

PHIL BREDESEN, Governor of the State

)

of Tennessee; and

)

VIOLA MILLER, Commissioner of the

)

Tennessee Department of Children's Services

)

)

Defendants.

)

---------------------------------------------------------------x

Civil Action No. 3-00-0445
Judge Campbell Magistrate Judge Brown

2010 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

TABLE OF CONTENTS
Preamble ..........................................................................................................................................3 I. Principles of 2010 Modified Settlement Agreement and Exit Plan and Definitions .......... 3
A. Principles of 2010 Modified Settlement Agreement and Exit Plan .........................3 B. Class Definition ......................................................................................................5 C. Principles of Tennessee’s Child and Family Team Meeting Model........................5 D. Definition of Provisions Identified as “MAINTENANCE” ....................................6 E. Other Definitions .....................................................................................................6 II. Structure of the Agency .......................................................................................................7 III. Reporting Abuse and Neglect ..............................................................................................7 IV. Regional Services.................................................................................................................7 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................8 VI. Placement and Supervision of Children.............................................................................12 VII. Planning for Children: Minimum Standards for All Children and Youth .........................17 VIII. Freeing a Child for Adoption .............................................................................................19 IX. Resource Parent Recruitment, Retention, and Approval ...................................................22 X. Statewide Information System ...........................................................................................24 XI. Quality Assurance ..............................................................................................................24 XII. Supervision of Private Provider Agencies .........................................................................26 XIII. Financial Development ......................................................................................................27 XIV. Technical Assistance Committee .......................................................................................28 XV. Monitoring .........................................................................................................................28 XVI. Outcome and Performance Measures ................................................................................29 XVII. Modification.......................................................................................................................33 XVIII. Enforcement, Termination and Exit...................................................................................33 A. General Principles Guiding Enforcement ..............................................................33 B. Dispute Resolution.................................................................................................33 C. Identification of “MAINTENANCE” Provisions ..................................................34 D. Termination and Exit .............................................................................................34 XIX. External Accountability Reporting Structure ....................................................................35 XX. Attorneys Fees and Expenses.............................................................................................35
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PREAMBLE
A. This 2010 Modified Settlement Agreement and Exit Plan (hereinafter “this agreement”) supersedes and replaces the January 2009 Modified Settlement Agreement. Subsequent to the resolution of Plaintiffs’ Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court’s approval, termination of jurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the “Department,” the “Department of Children’s Services” or “DCS,” upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children’s Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF 2010 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of 2010 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of the child’s safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
3

neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child’s interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
4

commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. “Foster children” shall mean all children who are or will be in the legal custody of DCS, excluding children who are or will be in the legal custody of DCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of DCS, shall be included in the class.
C. Principles of Tennessee’s Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee’s Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child’s time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child’s case manager, the Child and Family Team should include and engage people who represent both formal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
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4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as “MAINTENANCE”
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II – XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee (“TAC”) (defined in Section XIV of this agreement) in its Period IV Monitoring Report covering performance through June 30, 2010, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in its Period IV Monitoring Report covering performance through June 30, 2010, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants’ performance in the Period IV Monitoring Report covering performance through June 30, 2010, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS’s physical, out-of-home custody, or on the date on which the child enters DCS’s legal custody, whichever is sooner. The duration of a child’s time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an
6

individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS’s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unit(s) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement and/or private provider (including, if appropriate, closing of the placement and/or contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider’s array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
7

1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
B. Educational background requirements for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master’s degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master’s degree in social work or
8

a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master’s degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
3. Every case manager supervisor shall complete basic supervisor training and pass a skills-based competency assessment geared specifically to child welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
D. Pre-service and in-service training of DCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
3. For new supervisors, a minimum of 40 hours of in-service training directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and
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4. For supervisors, a minimum of 24 hours of in-service training each year.
E. DCS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DCS policy, and reasonable professional standards.
MAINTENANCE.
F. Prior to contracting with any private provider, DCS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DCS case manager, the curriculum will correspond with DCS pre-service and in-service training.
G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.
MAINTENANCE.
H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DCS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.
I. Prior to contracting or renewal with any private provide, the Department will ensure that each private provider agency has implemented an appropriate performance evaluation process to ensure the competency of those staff with responsibilities comparable to DCS case managers.
J. A single case manager assigned to a case shall have full responsibility for that case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child’s
10

placement; and assuring a safe, adequate and well-planned exit from foster care. A DCS case manager shall be assigned to every case. If a private provider is engaged in the case, the DCS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DCS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than:
x 15 individual children in DCS custody if the case manager is a case manager I;
x 20 individual children in DCS custody if the case manager is a case manager II or III with no supervisory responsibility; and
x 10 individual children in DCS custody if the case manager III supervises one or two lower level case managers.
MAINTENANCE.
If DCS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAC.
K. Supervision by DCS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
x A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
x A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers’ supervisors, to discuss the case. The departing case manager shall make every
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effort to introduce the receiving case manager, in person, to the child and the child’s parents.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
MAINTENANCE.
N. All documentation of contacts or developments in a child’s case shall be added to the child’s case file within 30 days. MAINTENANCE. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and services.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child’s needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child’s permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary
12

treatment center (PTC) for up to a maximum of 15 days, if a child’s behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
MAINTENANCE.
c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.
MAINTENANCE.
d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family’s natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.
e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.
MAINTENANCE.
f. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children unless (a) the child’s needs can be met in that specific facility and (b) that facility is the least restrictive placement that could meet the child’s needs.
g. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal
13

custody who has been placed in a jail, correctional or detention facility.
MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
i. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility.
MAINTENANCE.
j. DCS shall only contract for placements or services with licensed contractors or subcontractors.
MAINTENANCE.
2. For provisions VI.A.1.a., b., c., d., e., and f. above, if DCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:
a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or
b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.
3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VI.A.1.
B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. MAINTENANCE. The assessment may take place prior to custody, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child’s placement shall be reevaluated to ensure that it meets the child’s needs.
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C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. MAINTENANCE. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department’s policies regarding psychotropic medications.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
MAINTENANCE.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
G. DCS will maintain a child placement and private provider division within its Central Office. MAINTENANCE. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child’s individual needs to a placement facility or foster family. MAINTENANCE. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly, appropriately, and in accordance with their needs.
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H. All children in the plaintiff class shall receive visits from the DCS case manager responsible for their case, whether the child is placed through a program directly run by DCS or through a private provider, as follows:
1. For children in DCS foster homes, worker-child visiting shall mean a faceto-face visit between the child’s DCS case manager and the child. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child’s needs are being met and service goals are being implemented. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
2. For children in a foster home or facility operated by a private provider:
a. Private provider case worker: DCS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child’s adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Worker-child visiting shall mean a face-to-face visit between the child’s private agency case worker and the child. All visits shall include a private meeting between the private provider case worker and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
b. DCS case manager: The DCS case manager shall visit each child in a foster home or facility operated by a private provider as
16

frequently as necessary to ensure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented, but at least once each month. Worker-child visiting shall mean a face-to-face visit between the child’s DCS case manager and the child in the child’s placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child’s parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker. Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child’s participation would be contrary to his or her best interests.
C. The Department shall begin the process of building a team, assessing, and convening a formal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters state custody. Efforts to ensure the parents’ participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child’s case file.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in
17

the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.
F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory caseload. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager’s experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors remain engaged and responsible for quality casework.
G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.
MAINTENANCE.
H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.
MAINTENANCE.
I. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until return home is no longer an option.
MAINTENANCE.
J. The child’s DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child’s permanency goal is appropriate or to change it if it is not, to assure that the child’s services and placement are appropriate and are meeting the child’s specific needs, to assure that the parents
18

and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child’s permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child’s permanency plan.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody. An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child’s case.
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit. Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child’s continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child’s case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child’s permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
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B. DCS has replaced its process for making legal risk placements with policies and procedures for the “dual licensing” of resource families as foster parents and adoptive parents.
MAINTENANCE.
C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child’s case record.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child’s case file, for not doing so.
MAINTENANCE.
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5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.
MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed
21

monthly to assess whether the identified permanent family is still a viable permanency option.
3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth’s Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee’s dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE.
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B. DCS will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DCS shall issue annual reports on why resource families leave DCS and what steps are necessary to ensure their retention.
4. To the extent possible, DCS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
5. DCS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
C. All resource parent room and board rates (including rates for DCS resource parents, private provider resource parents and certified relatives and kin) will at a minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DCS shall provide specialized rates for DCS and private provider resource parents providing services to special needs children. MAINTENANCE. DCS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DCS also will continue to contract with private providers for medically fragile and therapeutic foster care services. MAINTENANCE.
E. DCS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. MAINTENANCE. DCS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
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F. DCS shall ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families for whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. MAINTENANCE. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible “audit trail” to the data base administrators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
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C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS’s performance.
MAINTENANCE.
E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all
cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
3. Children with a permanency goal of return home that has remained in effect for more that 24 months.
4. Children who have returned home and reentered care more than twice and have a permanency goal to return to that home.
5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed.
MAINTENANCE.
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6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home.
MAINTENANCE.
7. Children more than 60 days in custody who do not have a permanency plan.
8. Children for whom the permanency goal has not been updated for more than 12 months.
MAINTENANCE.
9. Children who have been in custody for 15 months or more with no TPR petition filed.
MAINTENANCE.
F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004.
MAINTENANCE.
G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998.
MAINTENANCE.
XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES
A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts.
MAINTENANCE.
B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
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C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.
D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for children in the plaintiff class shall be inspected annually by DCS staff with relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to determine agency compliance with the terms of this agreement.
F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding term of the contract.
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal
27

dollars result in additional federal funding. Nothing in this provision shall reduce the defendants’ financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee (“TAC”) of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer, Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs’ right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not
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initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC’s monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
A. Child Welfare Outcomes
1. Reunification
At least 80% of children entering care who are reunified with their parents or caregivers at the time of discharge from custody shall be reunified within 12 months of the latest removal date.
MAINTENANCE.
Of the remaining children, 75% shall be reunified within 24 months of the latest removal date.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
29

At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college, alternative approved educational program for special needs children, vocational training; or be employed full time.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no
30

less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record). The visit shall take place in the child’s home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child’s permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child’s case manager may consider the wishes of a child (generally older adolescents) and document in the case file any deviation from usual visitation requirements.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
c. For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent’s home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place
31

for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record), or more as otherwise required by the child’s permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more of the siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child’s wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and contact is maintained, shall be documented in the case file.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption.
MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
MAINTENANCE.
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6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly demonstrate that DCS action or inaction in contravention of this
33

agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of “MAINTENANCE” Provisions
1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC’s decision shall be final, binding, and unappealable by the parties.
3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor’s reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests of justice.
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XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs’ counsel, shall develop an external accountability reporting center (the “Center”). Beginning in January of 2011, DCS will fund and the Center will build the capacity to report publicly on DCS’s maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIII.D over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court’s termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIII.D of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

November ___, 2010 Nashville, TN

SO ORDERED:

___________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J.

35

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Marcia Robinson Lowry_______________ MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666 JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 578-7709
ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
36

ATTORNEYS FOR DEFENDANTS: /s/ Douglas Earl Dimond DOUGLAS EARL DIMOND (TN BPR #017953) ELIZABETH C. DRIVER (TN BPR #019363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913
37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

---------------------------------------------------------------------x

BRIAN A., by his next friend, Bobbi Jean Brooks;

)

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES C., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita Veasy; )

TERRY G., by her next friend, Carol Oldham;

)

ANDREW H., by his next friend, Laura Hash;

)

KENNETH I., by his next friend, Russell Morel;

)

NANCY J., by her next friend, Laura Hash; and

)

DONNA K., by her next friend, Laura Hash; and

)

KIERA L., by her next friend, Laura Hash;

)

JOSHUA M., by his next friend, Angela Blevins;

)

on their own behalf and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

--against--

)

)

PHIL BREDESEN, Governor of the State

)

of Tennessee; and

)

VIOLA MILLER, Commissioner of the

)

Tennessee Department of Children’s Services,

)

)

Defendants.

)

---------------------------------------------------------------------x

Civil Action No. 3-00-0445
Judge Campbell Magistrate Brown

SECOND SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Pursuant to Rule 15(d) of the Federal Rule s of Civil Procedure, Plaintiffs supple ment their Complaint (Docket No. 1) (the “Original Complaint”) as follows:

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1. Plaintiffs incorporate herein by referen ce, in its en tirety and as if set forth verbatim, their Or iginal Complaint, including each and eve ry allegation, cause of action, and request for relief set forth therein.
2. Plaintiffs also inco rporate herein by reference, in its entirety and as if set forth verbatim, their Proposed Supplem ental Complaint dated November 9, 2009 (attached as Exhibit A to Docket No. 335), including each and every a llegation, cause of action, and request for relief set forth therein.
JURISDICTION
3. This is an action pursuant to 42 U.S.C. § 1983, alleging violations of the United States Constitution and federal statutes, and of the Consent Decree in this action, which has the force of federal law. This court has jurisdiction over these federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This Court also has continuing jurisdiction to enforce the term s of the Consent Decree in this matter.
SUPPLEMENTAL PLAINTIFF AND NEXT FRIEND
4. Joshua M. is 15 years old and resides in Union County. 1 He was removed from his home by the Tennessee Department of Children’s Services (“DCS”) on or about November 9, 2009 on an allegation that he is dependent and neglected. On or about Novem ber 9, 2009, a bench order was issued by the Juvenile Court of Union County, ordering that temporary legal custody of Joshua M. be awarded to DCS, and further ordering that a hearing be held on
1 A p seudonym has been used in order to protect the identity of the minor Plaintiff in this Second Supplemental Complaint.
2 3
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November 13, 2009. At the tim e of the filing of the instant Second Supplem ental Complaint, Joshua M. is in the legal custody of DCS awaiting his commitment hearing, at which the judge of the Juvenile Court will determ ine whether he sh ould remain in DCS custody, be returned to his home, or be placed with a relative o r other non-DCS caregiver. At the tim e of the filing of the instant Second Supplemental Complaint, Joshua M. is not committed to the legal custody of DCS based solely upon an allegation or adjudication of a delinquent or criminal act.
5. Plaintiff Joshua M. appears through his Next Friend Angela Blevins. Ms. Blevins is the Guardian Ad Litem attorney for Joshua M. pursuant to an order issued by the Juvenile Court of Union County. Ms. Blev ins maintains her principal office at 109 Leinart S treet, Suite 101, Clinton, TN 37716.
6. Joshua M., Supplem ental Plaintiff in this Second Supplem ental Complaint, is at imminent risk of har m from Defendants’ implementation of Section 30 of Tennessee Public Chapter No. 531, which created a new subsection “f ” to Tennessee Code Annotated (“T.C.A.”) § 37-2-205 and became effective on July 7, 2009 (the “Over-Commitment Law”).
CAUSES OF ACTION
First Cause of Action (Contempt of § I(A)(2) of the Consent Decree)
7. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
8. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated
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class members under § I(A)(2) of the Consent Decree, and thus places Defendants in contempt of § I(A)(2) of the Consent Decree.
9. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Second Cause of Action (Contempt of § I(A)(12) of the Consent Decree) 10. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth. 11. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members under § I(A)(12) of the Consent D ecree, and thus places Defendants in contem pt of § I(A)(12) of the Consent Decree. 12. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
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Third Cause of Action (Contempt of § I(A)(13) of the Consent Decree)
13. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
14. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members under § I(A)(13) of the Consent D ecree, and thus places Defendants in contem pt of § I(A)(13) of the Consent Decree.
15. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Fourth Cause of Action (Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution)
16. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
17. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The Over-Commitment Law creates classifications among similarly situated
5 6
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children subject to com mitment decisions and treats them differently without legally sufficient justification.
Fifth Cause of Action (Due Process under the Fourteenth Amendment
to the United States Constitution)
18. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
19. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members awaiting judicial commitment decisions to a fair hearing and to due process under the Fourteenth Amendment to the United States Constitution.
PRAYER FOR RELIEF
20. WHEREFORE, Plaintiffs respectfully request that this Honorable Court, pursuant to its powers under Rule 57 of the Federal Ru les of Civil Procedur e and its continuing jurisdiction of this matter under the Consent Decree,
a. Declare that: i. The Over-Commitment Law, on its face and as applied, v iolates §§ I(A)(2), I(A)(12), and I(A)(13) of the Consent Decree, and places Defendants in contempt of the Consent Decree; ii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Equa l Protection Clause of the Fourteenth Amendment to the United States Constitution;
iii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Due Pro cess Clause of the Four teenth Amendment to the United States Constitution; 6 7
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b. Preliminarily and permanently en join the im plementation of the OverCommitment Law, T.C.A. § 37-2-205(f);
c. Award to Plain tiffs the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920, and Federal Rules of Civil Procedure 23(e) and (h); and
d. Grant such other and further equitabl e relief as the Court deem s just, necessary and proper to protect Pl aintiffs from further harm by Defendants.

DATED: November 12, 2009

Respectf

ully Submitted,

ATTORNEYS FOR PLAINTIFFS:

/s/ Marcia Robinson Lowry MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) YASMIN GREWAL-KOK (pro hac vice) PATRICK S. ALMONRODE (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Fl. New York, NY 10001 (212) 683-2210

/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) JACQUELINE B. DIXON (TN BPR #012054) HOLLINS, WAGSTER,
WEATHERLY & RAYBIN, P.C. SunTrust Center, 22nd Floor 424 Church Street Nashville, TN 37219 (615) 256-6666

RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 543-4299

7 8
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JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC One Commerce Square, Suite 1700 Memphis, TN 38103 (901) 525-1322 WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
8 9
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

BRIAN A., et al. v. PHIL BREDESEN, et al.

) ) ) NO. 3:00-0445 ) JUDGE CAMPBELL )

ORDER Pending before the Court are Defendants’ Motion to Dismiss Supplemental Complaint and Second Supplemental Complaint (Docket No. 356) and Defendants’ Motion to Take Judicial Notice and to Strike (Docket No. 373). For the reasons stated in the accom panying Memorandum, Defendants’ Motions are DENIED. IT IS SO ORDERED.

___________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd 1. Campbell ) Magistrate Judge Joe B. Brown ) ) )

JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

TABLE OF CONTENTS
Preamble .......................................................................................................................................... 3 1. Principles of the July 2011 Modified Settlement Agreement and Exit Plan and Definitions ... 3
A. Principles of the July 2011 Modified Settlement Agreement and Exit Plan ...........3 B. Class Definition ...................................................................................................... 5 C. Principles of Tennessee's Child and Family Team Meeting Model.. ......................5 D. Definition of Provisions Identified as "MAINTENANCE" ....................................6 E. Other Definitions ..................................................................................................... 6 II. Structure of the Agency .......................................................................................................7 III. Reporting Abuse and Neglect ..............................................................................................7 IV. Regional Services.................................................................................................................7 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................8 VI. Placement and Supervision of Children............................................................................. 12 VII. Planning for Children: Minimum Standards for All Children and youth ......................... 17 VIII. Freeing a Child for Adoption ............................................................................................. 19 IX. Resource Parent Recruitment, Retention, and Approval ...................................................22 X. Statewide Information System ...........................................................................................24 XI. Quality Assurance ..............................................................................................................24 XII. Supervision of Private Provider Agencies ........................................................................ .26 XIII. Financial Development .......................................................................................................27 XIV. Technical Assistance Committee ...................................................................................... .28 XV. Monitoring .........................................................................................................................28 XVI. Outcome and Performance Measures ................................................................................29 XVII. Modification.......................................................................................................................33 XVIII. Enforcement, Termination and Exit. ..................................................................................33 A. General Principles Guiding Enforcement ............................................................. .33 B. Dispute Resolution .................................................................................................33 C. Identification of "MAINTENANCE" Provisions ..................................................34 D. Termination and Exit ............................................................................................. 34 XIX. External Accountability Reporting Structure ....................................................................35 XX. Attorneys Fees and Expenses .............................................................................................35
2

PREAMBLE
A. This July 2011 Modified Settlement Agreement and Exit Plan (hereinafter "this agreement") supersedes and replaces the 2010 Modified Settlement Agreement and Exit Plan. Subsequent to the resolution of Plaintiffs' Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court's approval, termination ofjurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the "Department," the "Department of Children's Services" or "DCS," upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children's Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
1. PRINCIPLES OF THE JULY 2011 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of the July 2011 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child's parents only when necessary for the child's welfare or in the interest of the child's safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
3

neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child's interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
4

commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. "Foster children" shall mean all children who are or will be in the legal custody ofDCS, excluding children who are or will be in the legal custody ofDCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody ofDCS, shall be included in the class.
C. Principles of Tennessee's Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee's Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child's time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child's case manager, the Child and Family Team should include and engage people who represent both fonnal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
5

4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as "MAINTENANCE"
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II - XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee ("TAC") (defined in Section XIV of this agreement) in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants' performance in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS's physical, out-of-home custody, or on the date on which the child enters DCS's legal custody, whichever is sooner. The duration of a child's time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or
6

denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS' s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unites) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement andlor private provider (including, if appropriate, closing of the placement andlor contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider's array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
7

B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility oflong-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
B. Educational background requirements for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor's degree, with employment preference given to applicants holding a bachelor's degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor's degree, with employment preference given to applicants holding a bachelor's degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master's degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
8

3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master's degree in social work or a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master's degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
l. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
MAINTENANCE.
3. Every case manager supervisor shall complete basic supervisor training and pass a skills-based competency assessment geared specifically to child welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
D. Pre-service and in-service training ofDCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
3. For new supervisors, a minimum of 40 hours of in-service training
9

directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and

4. For supervisors, a minimum of24 hours of in-service training each year.

E. DeS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DeS policy, and reasonable professional standards.

MAINTENANCE.

F. Prior to contracting with any private provider, DeS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DeS case manager, the curriculum will correspond with DeS pre-service and in-service training.

G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.

MAINTENANCE.

H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DeS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.

1.

Prior to contracting or renewal with any private provide, the Department will

ensure that each private provider agency has implemented an appropriate

performance evaluation process to ensure the competency of those staff with

responsibilities comparable to DeS case managers.

J. A single case manager assigned to a case shall have full responsibility for that

10

case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child's placement; and assuring a safe, adequate and well-planned exit from foster care. A DeS case manager shall be assigned to every case. If a private provider is engaged in the case, the DeS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DeS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than:
• 15 individual children in DeS custody if the case manager is a case manager I;
• 20 individual children in DeS custody if the case manager is a case manager II or III with no supervisory responsibility; and
• 10 individual children in DeS custody if the case manager III supervises one or two lower level case managers.
MAINTENANCE.
If DeS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAe.
K. Supervision by DeS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
• A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
• A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior
11

notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers' supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child's parents.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
MAINTENANCE.
N. All documentation of contacts or developments in a child's case shall be added to the child's case file within 30 days. MAINTENANCE. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and serVlCes.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child's needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child's permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for
12

runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days, if a child's behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
MAINTENANCE.
c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.

MAINTENANCE.
d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family's natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.

e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.

MAINTENANCE.

f.

No child shall be placed in a residential treatment center or any

other group care setting with a capacity in excess of eight children

unless (a) the child's needs can be met in that specific facility and

(b) that facility is the least restrictive placement that could meet the

child's needs.

g. No child in DeS physical or legal custody in foster care shall be placed, by DeS or with knowledge of DeS, in a j ail, correctional or detention facility unless such child has been charged with a
13

delinquency charge or unless otherwise placed or ordered by the court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal custody who has been placed in a jail, correctional or detention facility.

MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.

1.

Children for whom the permanency goal is adoption should,

whenever possible, be placed with a family in which adoption is a

possibility.

MAINTENANCE.
J. DCS shall only contract for placements or services with licensed contractors or subcontractors.

MAINTENANCE.

2. For provisions VLA.1.a., b., c., d., e., and f. above, ifDCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:

a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or

b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.

3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VLA.l.

B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. MAINTENANCE. The assessment may take place prior to custody, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child's placement shall be reevaluated to ensure
14

that it meets the child's needs.
C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. MAINTENANCE. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department's policies regarding psychotropic medications.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
MAINTENANCE.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
G. DCS will maintain a child placement and private provider division within its Central Office. MAINTENANCE. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child's individual needs to a placement facility or foster family. MAINTENANCE. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly, appropriately, and in accordance with their needs.
15

H. All children in the plaintiff class shall receive visits from the DeS case manager responsible for their case, whether the child is placed through a program directly mn by DeS or through a private provider, as follows:
1. For children in DeS foster homes, worker-child visiting shall mean a faceto-face visit between the child's DeS case manager and the child. Visits may take place in the child's placement, at school if the child is of school age, in the case manager's office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child's adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child's needs are being met and service goals are being implemented. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child's entrance into custody, and at least 3 of these visits shall take place in the child's placement. Following the first two months after a child's entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver's home.
2. For children in a foster home or facility operated by a private provider:
a. Private provider case worker: DeS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child's adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child's needs are being met and service goals are being implemented. Visits may take place in the child's placement, at school if the child is of school age, in the case manager's office, or in another appropriate setting. Worker-child visiting shall mean a face-to-face visit between the child's private agency case worker and the child. All visits shall include a private meeting between the private provider case worker and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child's entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the child's placement. Following the first two months after a child's entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver'S home.
b. DeS case manager: The DeS case manager shall visit each child in a foster home or facility operated by a private provider as
16

frequently as necessary to ensure the child's adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to detennine that the child's needs are being met and service goals are being implemented, but at least once each month. Worker-child visiting shall mean a face-to-face visit between the child's DCS case manager and the child in the child's placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child's parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker. Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child's participation would be contrary to his or her best interests.
C. The Department shall begin the process of building a team, assessing, and convening a fonnal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters state custody. Efforts to ensure the parents' participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child's case file.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in
17

the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.

F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory case1oad. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager's experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors remain engaged and responsible for quality casework.

G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.

MAINTENANCE.

H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.

MAINTENANCE.

1.

Children with an initial goal of return home may also have another concurrently

planned permanency goal. Record keeping and tracking for any child in the class

with more than one concurrently planned permanency goal shall be consistent

with a goal of return home until return home is no longer an option.

MAINTENANCE.

1. The child's DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child's permanency goal is appropriate or to change it if it is not, to assure that the child's services and placement are appropriate and are meeting the child's specific needs, to assure that the parents
18

and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child's permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child's permanency plan.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody. An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child's case.
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of Des before the expiration of the trial home visit. Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child's continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child's case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child's permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
19

B. DCS has replaced its process for making legal risk placements with policies and procedures for the "dual licensing" of resource families as foster parents and adoptive parents.
MAINTENANCE.
C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child's case record.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child's case file, for not doing so.
MAINTENANCE.
20

5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.
MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed
21

monthly to assess whether the identified permanent family is still a viable permanency option.
3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth's Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee's dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE.
22

B. Des will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DeS shall issue annual reports on why resource families leave DeS and what steps are necessary to ensure their retention.
4. To the extent possible, DeS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
5. DeS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
e. All resource parent room and board rates (including rates for DeS resource parents, private provider resource parents and certified relatives and kin) will at a minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DeS shall provide specialized rates for DeS and private provider resource parents providing services to special needs children. MAINTENANCE. DeS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DeS also will continue to contract with private providers for medically fragile and therapeutic foster care services. MAINTENANCE.
E. DeS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. MAINTENANCE. DeS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
23

F. DCS shall ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families for whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. MAINTENANCE. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible "audit trail" to the data base administrators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
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C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS 's performance.
MAINTENANCE.
E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all
cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
3. Children with a permanency goal of return home that has remained in effect for more that 24 months.
4. Children who have returned home and reentered care more than twice and have a permanency goal to return to that home.
5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed.
MAINTENANCE.
25

6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home.
MAINTENANCE.
7. Children more than 60 days in custody who do not have a permanency plan.
8. Children for whom the permanency goal has not been updated for more than 12 months.
MAINTENANCE.
9. Children who have been in custody for 15 months or more with no TPR petition filed.
MAINTENANCE.
F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004.
MAINTENANCE.
G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998.
MAINTENANCE.
XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES
A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts.
MAINTENANCE.
B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
26

C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.
D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for children in the plaintiff class shall be inspected annually by DCS staff with relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to detennine agency compliance with the tenus of this agreement.
F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding tenu of the contract.
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal
27

dollars result in additional federal funding. Nothing in this provision shall reduce the defendants' financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee ("TAC") of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer, Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court's jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs' right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not
28

initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC's monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
A. Child Welfare Outcomes
1. Reunification
At least 80% of children entering care who are reunified with their parents or caregivers at the time of discharge from custody shall be reunified within 12 months of the latest removal date.
MAINTENANCE.
Of the remaining children, 75% shall be reunified within 24 months of the latest removal date.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
29

At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college, alternative approved educational program for special needs children, vocational training; or be employed full time.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no
30

less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record). The visit shall take place in the child's home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child's permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child's case manager may consider the wishes of a child (generally older adolescents) and document in the case file any deviation from usual visitation requirements.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
c. For the remaining class members with a goal ofreunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent's home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place
31

for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record), or more as otherwise required by the child's permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more ofthe siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child's wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and contact is maintained, shall be documented in the case file.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption.
MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
MAINTENANCE.
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6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly demonstrate that DCS action or inaction in contravention of this
33

agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of "MAINTENANCE" Provisions
1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC's decision shall be final, binding, and unappealable by the parties.
3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor's reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests ofjustice.
34

XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs' counsel, shall develop an external accountability reporting center (the "Center"). Beginning in January of 2011, DCS will fund and the Center will build the capacity to report publicly on DCS's maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIILD over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court's termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIILD of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

_ _ _ _,2011 Nashville, TN

SO ORDERED:

HONORABLE TODD J. CAMPBELL, U.S.D.J.

35

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS: /s/ Marcia Robinson Lowry MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) MELISSA COHEN (pro hac vice) CHILDREN'S RIGHTS, INe. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.e. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS: RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 578-7709
ROBERT LOUIS HUTTON (TN BPR #15496) Glanlder Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
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ATTORNEYS FOR DEFENDANTS: fsf Lindsey O. Appiah LINDSEY O. APPIAH (TN BPR #027069) Assistant Attorney General General Civil Division P.O. Box 20207 Nashville, TN 37202 (615) 741-7630
37

 
 149 F.Supp.2d 941 United States District Court,
M.D. Tennessee, Nashville Division.
BRIAN A., by his next friend, Bobbi Jean BROOKS, et al. v.
Donald SUNDQUIST, et al.
No. 300–0445. | Oct. 26, 2000.
Attorneys and Law Firms
*943 David Louis Raybin, Jacqueline B. Dixon, Nashville, TN, Marcia Robinson Lowry, Ira P. Lustabader, New York City, for plaintiff.
Dianne Stamey Dycus, Nashville, TN, Elizabeth C. Driver, Nashville, TN, Douglas E. Dimond, Nashville, TN, for defendant.
Opinion
*944 MEMORANDUM
CAMPBELL, District Judge.
Pending before the Court is Defendants’ Motion to Dismiss (Docket No. 19). For the reasons stated herein, Defendants’ Motion is GRANTED in part and DENIED in part.
FACTS
This is a civil rights action, brought by Plaintiffs under 42 U.S.C. § 1983 (“Section 1983”) against Donald Sundquist, as Governor of the State of Tennessee, and George Hattaway, as Commissioner of the Tennessee Department of Children’s Services (“DCS”), on behalf of a putative class consisting of all foster children who are or will be in the custody of DCS and a putative subclass of children within that class who are African–American. Complaint (Docket No. 1), ¶ 1.
Plaintiffs allege violations by Defendants of the United States Constitution, federal statutes and federal common law. Specifically, Plaintiffs contend that Defendants are violating their rights under the First, Ninth, and Fourteenth Amendments to the U.S. Constitution; under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 [42 U.S.C. §§ 620–27, 670–670a], and regulations promulgated thereunder; under the Americans with Disabilities Act [42 U.S.C. §§ 12101, et seq.]; under the Rehabilitation Act of 1973 [29 U.S.C. §§ 794, 794a]; under Title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d, et seq.] and its implementing regulations; and under federal common law, with Plaintiffs as alleged third-party beneficiaries to Tennessee’s “State Plan” contract with the federal government, pursuant to the Adoption Assistance Act. Complaint (Docket No. 1), ¶ 63.
Plaintiffs allege a systemic failure by Defendants to fulfill their legal obligations to provide Plaintiffs with required services under federal law. This action seeks injunctive and declaratory relief, to halt the alleged violations and to ensure that Defendants protect and provide necessary and mandatory care to the foster children in state custody.
Defendants have moved to dismiss the action on several bases, including failure to state a claim for which relief can be granted and the doctrine of abstention.
MOTIONS TO DISMISS
In considering a motion to dismiss for failure to state a claim on which relief can be granted, the court must accept as true all factual allegations in the complaint. Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir.1994), cert. denied, 511 U.S. 1128, 114 S.Ct. 2137, 128 L.Ed.2d 866 (1994). The motion should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.
A motion to dismiss for failure to state a claim upon which relief can be granted must be viewed in the light most favorable to the party opposing the motion. State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc., 856 F.Supp. 1229, 1232 (S.D.Ohio 1994). The purpose of a motion to dismiss for failure to state a claim is to allow the defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).
In other words, in deciding a motion to dismiss, the function of the district court is to test the legal sufficiency of the complaint. City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646, 650 (N.D.Ohio 1993). The district court is without authority to dismiss claims unless it can be demonstrated beyond doubt that *945 the plaintiff can prove no set of facts that would entitle him to relief. Id.
ADOPTION ASSISTANCE ACT
Defendants first argue that Plaintiffs have failed to show that the Adoption Assistance Act (“AAA”) creates any enforceable rights and, therefore, Plaintiffs’ AAA claims should be dismissed.
[1] [2] In order to seek redress through Section 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). Section 1983 is not available to enforce a violation of a federal statute “where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983.” Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987).1
[3] The Supreme Court has set forth a three-part test for determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Blessing, 117 S.Ct. at 1359. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Id. Third, the statute must unambiguously impose a binding obligation on the States. Id. “In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Id. (citing Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 510–11, 110 S.Ct. 2510, 2517–18, 110 L.Ed.2d 455 (1990)).2 The Court, accordingly, must apply the Wilder framework to each of the portions of the AAA allegedly violated by Defendants.3
As noted by the Supreme Court, “[o]nly when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights.” Blessing, 117 S.Ct. at 1360.

Right to Written Case Plans with Required Elements and a Review System [42 U.S.C. §§ 671(a)(10), 671(a)(16), 675 (1), 675(5) and 622(b)(10)(B)(ii) ]
[4] Plaintiffs assert that the AAA provides them with enforceable rights to timely written case plans, containing specific mandated elements, which are reviewed and updated at specific intervals, pursuant to 42 U.S.C. §§ 622(b)(10)(B)(ii), *946 671(a)(16), 675(1) and 675(5). Defendants argue that these provisions of the AAA do not create enforceable rights.
There is a clear split of authority on this issue. Compare, e.g., Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996), Norman v. McDonald, 930 F.Supp. 1219 (N.D.Ill.1996), and Jeanine B. v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995) (holding that certain provisions of the AAA do create enforceable rights) with Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J.2000), Del A. v. Roemer, 777 F.Supp. 1297 (E.D.La.1991) and Eric L. v. Bird, 848 F.Supp. 303 (D.N.H.1994) (holding that certain provisions of the AAA do not create enforceable rights).
The Supreme Court addressed one specific provision of the AAA in the case of Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). In Suter, the Court found that 42 U.S.C. § 671(a)(15) did not create a private right of action. That provision requires that “reasonable efforts” be made, prior to placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home and to make it possible for the child to return to his home. 42 U.S.C. § 671 (a)(15). The Suter Court found that the “reasonable efforts” language does not “unambiguously confer an enforceable right upon the Act’s beneficiaries.” Suter, 112 S.Ct. at 1370.
After the Suter decision, Congress amended the AAA to provide as follows:
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
42 U.S.C. § 1320a–2 (2000 Supp.).
This Court does not read this Amendment as a clear expression of Congress’s intent to create a private right of enforcement, however. See Marisol A., 929 F.Supp. at 682. Rather, the Court is persuaded that Congress has expressed its intent for courts to apply pre-Suter case law to determine the private enforceability of the AAA provisions other than Section 671(a) (15). Id.; see also Jeanine B., 877 F.Supp. at 1285.
In 1990, before Suter, the Sixth Circuit Court of Appeals held that foster parents have a private right of action under Section 1983 to enforce the rights afforded under the AAA. Timmy S. v. Stumbo, 916 F.2d 312, 316 (6th Cir.1990). Timmy S. dealt with Section 671(a)(12), a provision not at issue in this case or in Suter. The Sixth Circuit quoted its earlier decision in Lesher v. Lavrich, 784 F.2d 193, 197 (6th Cir.1986), where it had commented: “It may be reasonable to read the Adoption Assistance Act to permit parents and children affected by the programs it funds to sue to force those programs to comply with federal funding requirements....” The court also relied upon the First Circuit case of Lynch v. Dukakis, 719 F.2d 504 (1st Cir.1983), wherein that court held that a class consisting of all children under the jurisdiction of Massachusetts’ foster family home care system, and all members of the children’s natural and foster families could maintain a Section 1983 action for prospective injunctive relief where it was alleged that the state had not complied *947 with a statutorily mandated procedure. See Lynch, 719 F.2d at 512.
The Sixth Circuit also considered, after Suter, the issue of whether certain Medicaid provisions give rise to rights enforceable under Section 1983. Wood v. Tompkins, 33 F.3d 600 (6th Cir.1994). The Court applied the Wilder three-part analysis in deciding whether such a private right of action existed. Id. at 606–08. Similarly, in Tony L. v. Childers, 71 F.3d 1182 (6th Cir.1995), the court applied the three-part Wilder test in determining whether the Child Abuse Prevention and Treatment Act created rights enforceable in a Section 1983 action.
Applying the Wilder factors to this case, it is clear that, in general, foster children are the intended beneficiaries of the AAA. See Jeanine B., 877 F.Supp. at 1283. Specifically, foster children such as the Plaintiffs are the intended beneficiaries of Sections 622, 671 and 675. See Marisol A., 929 F.Supp. at 683.
In addition, the language of the provisions at issue is mandatory—the State must meet certain requirements to be eligible for funding, to gain additional funding, and to avoid a reduction in funding. Marisol A., 929 F.Supp. at 683. In other words, “Congress imposed a binding obligation by explicitly tying the creation of certain features of a state plan to federal funding.” Jeanine B., 877 F.Supp. at 1283.
Finally, the Court agrees with the courts in Jeanine B. and Marisol A. that these provisions are not too “vague or amorphous” to be enforced by the judiciary. Id.; Marisol A., 929 F.Supp. at 683. For these reasons, the Court finds that these provisions of the AAA—requiring a written case plan with mandated elements and a periodic review system—do create rights which are enforceable under Section 1983. See also B.H. v. Johnson, 715 F.Supp. 1387, 1402 (N.D.Ill.1989) (preSuter holding that the AAA creates an enforceable right to an individualized case plan and case review system) and Norman v. McDonald, 930 F.Supp. 1219, 1227 (N.D.Ill.1996) (post-Suter) and cases cited therein.
As described by another court:
It would strain logic to hold that plaintiffs, as the intended beneficiaries of the Adoption Assistance Act, nevertheless are precluded from enforcing their rights under the Act. Moreover, the provisions of the Act itself persuade the Court that the Act creates enforceable rights. These provisions are extraordinarily specific, spelling out exactly what a state must do for children in its care in order to receive funding under the Act. Based on this, the Court holds that the Adoption Assistance Act, by its terms, “creates obligations ‘sufficiently specific and definite’ to be within ‘the competency of the judiciary to enforce,’ ... is intended to benefit the putative plaintiffs, and is not foreclosed ‘by express provision or other specific evidence from the statute itself.’ ”
LaShawn v. Dixon, 762 F.Supp. 959, 989 (D.D.C.1991).
With regard to Defendants’ argument that Plaintiffs have no right to the implementation of their case plans, the Court notes the following reasoning from the Sixth Circuit in Wood: “It is worth noting that the enforceable rights in question are not merely procedural rights that the state’s plan make the relevant provisions. Rather, the rights that are enforceable include the substantive right that the state actually act in accordance with its plan; it must implement that which it assures.” Wood, 33 F.3d at 608, n. 16.4
*948 In Wilder, the Supreme Court held that the Medicaid Act provided an enforceable right to “the adoption of reimbursement rates that are reasonable and adequate to meet the costs of an efficiently and economically operated facility that provides care to Medicaid patients.” Wilder, 110 S.Ct. at 2517. In so doing, the Court noted: “the right is not merely a procedural one that rates be accompanied by findings and assurances (however perfunctory) of reasonableness and adequacy; rather the Act provides a substantive right to reasonable and adequate rates as well.” Id. The Court went on:
Any argument that the requirements of findings and assurances are procedural requirements only and do not require the State to adopt rates that are actually reasonable and adequate is nothing more than an argument that the State’s findings and assurances need not be correct.
We reject that argument because it would render the statutory requirements of findings and assurances, and thus the entire reimbursement provision, essentially meaningless. It would make little sense for Congress to require a State to make findings without requiring those findings to be correct. In addition, there would be no reason to require a State to submit assurances to the Secretary if the statute did not require the State’s findings to be reviewable in some manner by the Secretary.

. . . . .
Rather, the only plausible interpretation of the amendment is that by requiring a State to find that its rates are reasonable and adequate, the statute imposes the concomitant obligation to adopt reasonable and adequate rates.
Wilder, 110 S.Ct. at 2519–20.
Defendants argue that the language of Section 671(a)(10) specifically is too vague and amorphous to be enforced pursuant to Section 1983. There is a split of authority on this particular provision as well. Section 671(a)(10) provides that the State shall have a plan approved by the Secretary which:
provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part of part B of this subchapter;
42 U.S.C. § 671(a)(10) (Supp.2000).
Both the Jeanine B. and the Marisol A. courts, whose reasoning the Court finds persuasive, found that the language of Section 671(a)(10) was not so vague or amorphous as to make judicial enforcement impossible. Marisol A., 929 F.Supp. at 683; Jeanine B., 877 F.Supp. at 1284 (“These provisions are not vague, not amorphous, and certainly not beyond a court’s ability to understand and to enforce.”). Compare Yvonne L., 959 F.2d at 889 (holding that the language of Section 671(a) (10) is the *949 type of vague and amorphous language identified in Wilder that cannot be judicially enforced).
The Court finds the language of Section 671(a)(10) to be sufficiently specific to create a private right of action for enforcement thereof. In contrast to the Suter language simply requiring the state to make “reasonable efforts” with no elaboration on what that entailed, this section requires that the state establish standards “reasonably in accord with recommended standards of national organizations concerned with the standard for such institutions or homes.”
For all these reasons, the Court finds that Plaintiffs have properly alleged claims pursuant to Sections 671(a)(10) and (16), 675(1) and (5) and 622(b)(10)(B)(ii), and Defendants’ Motion to Dismiss those claims is DENIED.
Right to Statewide Information System Which Meets Statutory Requirements [42 U.S.C. § 622(b)(10)(B)(i) ]
[5] Defendants contend that there is no private right of action for the enforcement of Section 622(b)(10)(B)(i), which requires the state to operate, to the satisfaction of the Secretary, a statewide information system “from which can be readily determined the status, demographic characteristics, location, and goals for the placement of every child who is (or, within the immediately preceding 12 months, has been) in foster care.” Id.
Defendants argue that the reason this provision does not create an enforceable right is that it was not intended to benefit individual children. Plaintiffs, on the other hand, contend that because the information system required by this statute directly tracks the information on which decisions are based concerning where a child will live and what services he or she will receive, it certainly does involve direct benefits to individual children. Plaintiffs allege that Defendants’ lack of such an adequate information system has harmed the Plaintiff children.
This Court agrees that if the state maintains a statewide information system from which the required information may be readily determined for every child in foster care, then the children in foster care individually benefit therefrom; conversely, if the state fails to maintain such an adequate information system (status, demographic characteristics, location, and goals for placement of every child), it is the foster children who are individually harmed.
Accordingly, based upon the above authorities, the Court finds that Plaintiffs have properly alleged claims pursuant to Section 622(b)(10)(B)(i), and Defendant’s Motion to Dismiss those claims is DENIED.
For all the above reasons, Plaintiff’s AAA claims do state claims for which relief may be granted, and Defendant’s Motion to Dismiss the AAA claims is DENIED.
AMERICANS WITH DISABILITIES ACT
Since the filing of this action and the pending Motion to Dismiss, the Sixth Circuit Court of Appeals has held that Congress exceeded its authority when it abrogated Eleventh Amendment immunity by applying the Americans with Disabilities Act (“ADA”) to the States. Popovich v. Cuyahoga County Court of Common Pleas, 227 F.3d 627 (6th Cir. 2000).
In light of this holding by the Sixth Circuit, the Court finds that Defendants’ Motion to Dismiss Plaintiffs’ ADA claims against these State Defendants should be granted, and those claims are DISMISSED.5
*950 REHABILITATION ACT
The parties have not had an opportunity to brief what effect, if any, Popovich has on the Rehabilitation Act claims in this case. Accordingly, the Motion to Dismiss is DENIED on the Rehabilitation Act issues, pending the filing of a supplemental motion by the Defendants and full briefing by the parties on this issue.
TITLE VI
Plaintiffs also assert claims, on behalf of the proposed subclass of African–American foster children, under Title VI of the United States Code, which provides, at Section 601:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance.
42 U.S.C. § 2000d.
[6] The Supreme Court has stated that Title VI was intended to “halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution.” Regents of the University of California v. Bakke, 438 U.S. 265, 284, 98 S.Ct. 2733, 2745, 57 L.Ed.2d 750 (1978). The Supreme Court has also recognized an implied private cause of action to enforce Section 601 of Title VI. See Alexander v. Choate, 469 U.S. 287, 293–94, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). There is an implied right of action to enforce both the statute and the implementing regulations promulgated thereunder. Sandoval v. Hagan, 197 F.3d 484, 502 (11th Cir.1999).6 In addition, there is an implied right of action to pursue a disparate impact theory. Buchanan v. City of Bolivar, 99 F.3d 1352, 1356, n. 5 (6th Cir.1996).
[7] To state a claim for damages under Title VI, a plaintiff must allege that (1) the entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal assistance. Grimes v. Superior Home Health Care, 929

F.Supp. 1088, 1092 (M.D.Tenn.1996).
[8] There is no dispute in this case that Defendants receive federal assistance. The Court also finds that Plaintiffs’ Complaint herein sufficiently states, for purposes of a motion to dismiss, claims that Defendants are engaging in racial discrimination. For example, Plaintiffs allege that the administration of child welfare services in Tennessee has the effect of subjecting children in the African–American subclass to discrimination based upon their race. Complaint, ¶ 209. Plaintiffs also contend that the administration of these services in Tennessee has the effect of defeating or substantially impairing the accomplishment of the objectives of the services to foster children, with respect to the subclass of African–American children. Id.
In support of these claims, Plaintiffs cite to a recent Comptroller’s Report, which they contend shows evidence of systemic intentional discrimination as well as disparate impact. Complaint, ¶¶ 211–214. In addition, the named Plaintiffs who fall in the proposed subclass, Brian A., Jack C., Charles C. Denise E. and Charlette F., *951 allege specific injury as a result of Defendants’ discriminatory practices. See Complaint, ¶¶ 84–85, 97, 102–103, 112, 115, 120–121.
Viewing all these allegations in the light most favorable to the Plaintiff, the Court finds that Defendants’ Motion to Dismiss Plaintiffs’ Title VI claims should be DENIED.
FEDERAL COMMON LAW
Plaintiffs’ Complaint alleges that Plaintiffs are third-party beneficiaries to the “State Plan” contract between the State of Tennessee and the federal government. Pursuant to the AAA and federal common law, Plaintiffs assert a cause of action for violation of their rights under that contract. See Complaint (Docket No. 1), ¶¶ 23, 70–71 and 219. Defendants contend first that the “State Plan” does not constitute a contract; and, secondly, that, even if it were, Plaintiffs are not third-party beneficiaries who may enforce such a contract. Finally, Defendants argue that the Eleventh Amendment bars any remedial relief to the Plaintiffs.
Plaintiffs respond by first noting that this question should not be decided on a motion to dismiss, given that the contract itself is not even in evidence. See Thomas v. New York City, 814 F.Supp. 1139, 1152 (E.D.N.Y.1993). Alternatively, Plaintiffs argue the “State Plan” is a contract, to which Plaintiffs are third party beneficiaries. Plaintiffs assert that federal common law governs this claim because the State Plan contract was entered into pursuant to the AAA, a federal statute, and significant federal interests and obligations are at stake.
The Supreme Court has held that legislation enacted pursuant to the spending power of Congress is much in the nature of a contract: “in return for federal funds, the States agree to comply with federally imposed conditions.” Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981). It is also recognized that, under certain circumstances, parties can be third party beneficiaries to such contracts between the federal government and local or state agencies. See, e.g., Concerned Tenants Ass’n of Father Panik Village v. Pierce, 685 F.Supp. 316, 324 (D.Conn.1988) (tenants have enforceable rights as intended beneficiaries to obtain compliance with obligations under contract between HUD and local agency); Holbrook v. Pitt, 643 F.2d 1261, 1273 (7th Cir.1981) (tenants were third party beneficiaries of HUD contracts with owners); Dewakuku v. Cuomo, 107 F.Supp.2d 1117, 1134–35 (D.Ariz.2000) (purchaser of substandard housing was intended third party beneficiary of contract between HUD and housing authority); and Beverly v. Macy, 702 F. 2d 931, 942–43 (11th Cir.1983) (policyholder was third party beneficiary to agreement between National Flood Insurers Association and insurer).
In determining whether Plaintiffs are intended third party beneficiaries of the alleged contract in this case, the Court must first decide whether federal or state common law applies. See Dewakuku, 107 F.Supp.2d at 1131. Although it is true that the United States is a party, through its Department of Health and Human Services, to the alleged contract at issue, the United States is not a party to this action. The Complaint raises no question regarding the liability of the United States or the responsibilities of the United States under the alleged contract. See Miree v. DeKalb County, Georgia, 433 U.S. 25, 28, 97 S.Ct. 2490, 2493, 53 L.Ed.2d 557 (1977) (holding that state law applied to petitioners’ breach-of-contract claim as third party beneficiaries); see also Dewakuku, 107 F.Supp.2d at 1131 (federal common law applies to third party beneficiary claims when a federal agency is a party to the *952 action and the outcome may directly affect financial obligations of the United States).
The Sixth Circuit Court of Appeals has also noted: “We have held that the authority to create a federal common law rule without reference to a statute or Constitution exists only ‘in such narrow areas as those concerned with the rights and obligations of the United States, interstate or international disputes implicating the conflicting rights of the States or relations with foreign nations, and admiralty cases.’ ” Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1249 (6th Cir.1996).
The “contract” between the parties is not before the Court. Therefore, the full scope of the United States’ interests is not clear for purposes of making the threshold determination of whether federal or state common law applies. In any event, the Court cannot determine the rights of the parties to a contract that is not in the record. Accordingly, the Motion to Dismiss the contract claims is DENIED, without prejudice to the filing of a motion for summary judgment addressing these issues.
SUBSTANTIVE DUE PROCESS
Plaintiffs allege violations of their rights under the First, Ninth and Fourteenth Amendments to the United States Constitution. Among other things, Plaintiffs allege that the systemic deficiencies in Defendants’ foster care program violate the children’s recognized substantive due process rights under the Fourteenth Amendment. More specifically, Plaintiffs contend that the actions and inactions of Defendants are inconsistent with the exercise of reasonable professional judgment and also amount to a pattern, practice and custom of deliberate indifference to the constitutional rights of children in the proposed class. Complaint, ¶ 215.
[9] The Sixth Circuit Court of Appeals has stated that substantive due process is a “doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir.1992). Substantive due process provides that, irrespective of the constitutional sufficiency of the processes afforded, the government may not deprive individuals of fundamental rights unless the action is necessary and animated by a compelling purpose. Bartell v. Lohiser, 215 F.3d 550, 557–58 (6th Cir.2000).
[10] Substantive due process rights are rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away. Taylor v. Ledbetter, 818 F.2d 791, 794 (11th Cir.1987). The Supreme Court has recognized such fundamental rights as abortion, privacy, marriage, and safety and physical movement. Id.
Defendants move to dismiss Plaintiffs’ substantive due process claim, arguing that nothing they did or failed to do amounted to a violation of any recognized substantive due process rights. Defendants argue that children in foster care are entitled simply to be protected from harm of which the government officials know or should have known and that, at most, foster children are entitled simply to provision for their basic human needs. In other words, Defendants ask this Court to interpret very narrowly the substantive due process rights afforded foster children in the past.
The Sixth Circuit has held that children in state-regulated foster homes have substantive due process rights to be free from the infliction of unnecessary harm. Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.1990); see also *953 Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir.1994) (it was “clearly established,” for purposes of qualified immunity analysis, that substantive due process extends to children in state-regulated foster care homes a right to be free from infliction of unnecessary harm).
Other circuits have found similar rights. Norfleet v. Arkansas Dep’t of Human Services, 989 F.2d 289 (8th Cir.1993) (state had obligation to provide child in foster care with adequate medical care, protection and supervision); Yvonne L. v. New Mexico Dep’t of Human Services, 959 F.2d 883 (10th Cir.1992) (children in foster care had constitutional right to be reasonably safe from harm); Doe v. New York City Dep’t of Social Services, 649 F.2d 134 (2d Cir.1981) (child in state custody had constitutional right not to be placed in foster care setting known to be unsafe); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.1987) (child placed in foster home may bring Section 1983 action for violation of Fourteenth Amendment

rights).
Plaintiffs contend that the following substantive due process rights have been violated by Defendants: right to protection from harm; right not to be harmed while in state custody; right not to be deprived of their liberty unnecessarily by retention in state custody; right to be placed in the least restrictive, most appropriate, family-like setting while in state custody; right to treatment consistent with the purpose of the state’s assumption of custody; right to receive care, treatment and services consistent with accepted, reasonable professional judgment; and right to protection from state-created dangers. Complaint, ¶ 215.
In determining whether Plaintiffs have stated a claim for violation of their substantive due process rights, this Court applies the Supreme Court’s analysis in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In that case, the Court found that the proper standard for determining whether a state had adequately protected the rights of an individual involuntarily committed to a state institution for the mentally retarded was whether professional judgment in fact was exercised. Youngberg, 457 U.S. at 321, 102 S.Ct. at 2461; see also Yvonne L., 959 F.2d at 894 (applying the professional judgment standard in a foster care case).
This constitutional norm is violated “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 102 S.Ct. at 2462. The Court held that the issue is whether in fact professional judgment was exercised, and the courts should defer to this professional judgment, which is presumptively valid. Id. at 2461–62. “It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id.
Although, in other contexts, courts have required a finding of “deliberate indifference” to the plaintiffs’ substantive due process rights (for example, in prison cases), this Court agrees with the logic in LaShawn A. v. Dixon, 762 F.Supp. 959 (D.D.C.1991), where the court held that children in foster care were more analogous to the plaintiffs in Youngberg than to incarcerated prisoners. Id. at 996. That court noted:
As the Youngberg decision recognizes, the rights of a person in the civil custody of the state are greater than the rights of a person in the state’s criminal custody. The foster children that make up the plaintiff class in this case have done society no wrong and they deserve no punishment. It would be inappropriate to force them to endure constitutional deprivations absent a showing of “deliberate *954 indifference” by their caretakers. At the same time, it would be inappropriate to hold caretakers liable for constitutional deprivations when those caretakers had exercised their professional judgment in determining the best course of conduct.
Id.
[11] Applying the professional judgment standard to this case, the Court finds that Plaintiffs’ Complaint adequately alleges conduct establishing violations of substantive due process rights. Plaintiffs’ Complaint alleges specific occurrences which, if true, would indicate a lack of professional judgment on the part of Defendants.
Because this Court must accept all allegations of the Complaint as true, it cannot dismiss Plaintiffs’ substantive due process claims at this juncture. Accordingly, Defendants’ Motion to Dismiss the substantive due process claims is DENIED.
PROCEDURAL DUE PROCESS
Plaintiffs allege that they have certain federally-created and state-created property and/or liberty interests of which they have been deprived without due process of law. Plaintiffs contend that the actions and inactions of the Defendants have violated Plaintiffs’ procedural due process rights.7
Defendants, on the other hand, argue four reasons why Plaintiffs’ procedural due process claims should fail: (1) Eleventh Amendment; (2) no constitutionally-protected liberty or property interests under state law; (3) federally-based claim is simply a rehash of claim to private right of action under federal statutes; and (4) insufficient pleading. The Court will deal with these arguments in turn.
[12] [13] The Eleventh Amendment bars state law claims brought in federal court against the State. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Plaintiffs’ due process claims are not state law claims, however. Plaintiffs allege state law merely as the basis for their alleged constitutionally-protected property interests. Property interests are not created by the Constitution; rather, they are created and their dimensions are defined by existing rules or understanding that stem from an independent source such as state law, rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
As with the rights alleged in Cassidy v. Adams, 872 F.2d 729, 732 (6th Cir.1989), the state law which Plaintiffs allege was systematically violated may have conferred constitutionally protected rights. Thus, resolution of the state law questions is a prerequisite to resolution of the constitutional questions presented. Id.; see also Spruytte v. Walters, 753 F.2d 498, 514 (6th Cir.1985).
[14] Plaintiffs’ action for violation of their due process rights cannot be characterized as an action based upon state law. Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1543–44 (6th Cir.1994). And, as noted by that court, the Eleventh Amendment does not bar Section 1983 actions brought against state officials in their *955 official capacities seeking prospective injunctive relief. Id.
Accordingly, Defendants’ Motion to Dismiss the procedural due process claims based upon the Eleventh Amendment is DENIED.
Defendants next argue that the relevant state law does not create any constitutionally protected rights anyway. Relying primarily upon Tony L. v. Childers, 71 F.3d 1182 (6th Cir.1995), Defendants assert that because the statutes at issue do not place substantive limitations upon official discretion and mandate particular substantive outcomes, they cannot be the basis for creating liberty interests which must be afforded procedural due process protections.
Citing Supreme Court authority, the Sixth Circuit held in Tony L. that state-created liberty interests arise when a states places “substantive limitations on official discretion.” Tony L., 71 F.3d at 1185 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)). A state substantively limits official discretion by establishing substantive predicates to govern official decisionmaking and by mandating the outcome to be reached upon a finding that the relevant criteria have been met. Id. The state statutes or regulations in question must also use explicitly mandatory language requiring a particular outcome if the articulated substantive predicates are present. Id. Finally, the statute or regulation must require a particular substantive outcome. Id.
Plaintiffs, citing another Sixth Circuit opinion, Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.1990), argue that the Tennessee child welfare laws speak in mandatory, nondiscretionary terms that create due process interests. In Meador, the court analyzed Kentucky’s child welfare statutes and held that they gave the plaintiff children an entitlement to protective services of which they could not be deprived without due process of law. Id. at 477.
Unlike this case, Tony L. dealt with children who were not in state custody, children who alleged violations of Kentucky’s child protection laws and the Child Abuse Prevention and Treatment Act. As Plaintiffs point out, that court specifically noted that it was not dealing with any provisions concerning children in state custody. Tony L., 71 F.3d at 1185, n. 3. The Tony L. court distinguished Meador by noting this difference and stating:
No matter what action an official takes to further the safety of children in foster homes, only one relevant policy goal will be furthered: the policy of making foster homes safe. The exercise of official discretion will not affect the substantive outcome. Thus, the existence of discretion in Meador did not defeat the plaintiffs’ liberty interest.
When the Cabinet receives a report of child abuse, it must balance the need to protect the child with the need to protect the

integrity of the biological family. The exercise of discretion may affect the substantive outcome. Thus, discretion is inherently necessary to effectuate the policy goals of the statutes in this case. This was not true in Meador.
Id.
[15] Based upon the reasoning set forth in Meador, the Court finds that Tony L. is not applicable on this issue. The Court finds that the state laws at issue herein give Plaintiffs certain entitlements of which they cannot be deprived without procedural due process. Defendants’ Motion to Dismiss based upon this argument is DENIED.
As noted above, Plaintiffs also claim certain liberty interests created by federal laws, interests of which they allegedly cannot be deprived without due process of *956 law. Defendants argue that Plaintiffs’ procedural due process claims based upon federal laws are merely repetitive of their Section 1983 claims for direct violations of those laws.
Defendants rely upon Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J.2000), in arguing that because the liberty interests alleged by Plaintiffs are nearly mirror images of the Section 1983 rights alleged, Plaintiffs cannot establish the existence of any liberty interests that would entitle them to due process. See Charlie H., 83 F.Supp.2d at 511–12. In that case, however, the court had found that Plaintiffs had no private rights of action under the federal statutes at issue. Id. at 481–502. This Court has found otherwise.
[16] Finally, Defendants contend that even if Plaintiffs could point to an entitlement, they have not sufficiently pled a deprivation of rights without due process. Defendants cite to Tennessee’s extensive judicial and quasi-judicial procedures for foster care families, procedures which Defendants contend provide sufficient notice and opportunity to be heard. What Defendants overlook, however, is Plaintiffs’ clear allegations of failures to provide those procedures, failures to conduct administrative or judicial reviews, and failures to conduct permanency hearings. In other words, Plaintiffs contend that the statutorily-created procedures cited by Defendants are routinely ignored. The Court finds that Plaintiffs’ Complaint sufficiently sets forth facts which, if true, could support a finding of a deprivation of rights without procedural due process.
For all these reasons, Defendants’ Motion to Dismiss Plaintiffs’ procedural due process claims is DENIED.

FIRST AND NINTH AMENDMENT CLAIMS
Plaintiffs have alleged that Defendants’ systematic actions and inactions have violated their rights under the First and Ninth Amendments not to be deprived of family relationships absent compelling reasons. Defendants argue that all such claims should be dismissed because the facts alleged fail even to relate to such claims or because they fail to rise to the level of a constitutional deprivation.
Plaintiffs’ allegations are based upon the recognized constitutional right to freedom of association. See Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The Supreme Court “has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Id., 104 S.Ct. at 3249. “In this respect, freedom of association receives protection as a fundamental element of personal liberty.” Id.8
Defendants’ argument on this point misperceives the Court’s task on a Motion to Dismiss. Defendants basically argue that Plaintiffs’ allegations concerning the First and Ninth Amendment violations are not true. See Docket No. 20, p. 45. The Court, accepting the allegations of the Complaint as true, cannot make such judgments on this motion.
Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ First and Ninth Amendment claims is DENIED.

*957 ABSTENTION
[17] Defendants submit that the Court should abstain from hearing Plaintiffs’ claims pursuant to the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In considering whether Younger abstention is appropriate, this Court must look to the following factors: (1) whether there are ongoing state judicial proceedings; (2) whether the proceedings implicate important state interest; and (3) whether there is an adequate opportunity in the state proceedings to present constitutional challenges. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir.1995).
The Sixth Circuit Court of Appeals “has squarely held that abstention from hearing claims of institutional violation of rights guaranteed by the U.S. Constitution is inappropriate and federal courts must hear federal constitutional claims.” Hanna v. Toner, 630 F.2d 442, 444 (6th Cir.1980); see also Timmy S. v. Stumbo, 537 F.Supp. 39, 46 (E.D.Ky.1981) (abstention not appropriate in civil rights case).
[18] Certainly this case implicates important state interests. The Court finds Defendants’ contention that there are ongoing state judicial proceedings, however, to be misleading. It is true that Tennessee has in place a system of procedures for bringing and maintaining a child under the jurisdiction of a juvenile court. It is true that there are ongoing and pending state proceedings concerning individual foster children; but nothing about this litigation seeks to interfere with or enjoin those proceedings. Rather, Plaintiffs seek injunctive relief against the Department of Children’s Services, not the courts.
Further, the Court finds that the juvenile courts of Tennessee are not more appropriate vehicles for adjudicating the claims raised in this putative class action. Although technically Plaintiffs could raise constitutional questions in their individual juvenile proceedings, there is no pending judicial proceeding which could serve “as an adequate forum for the class of children in this case to present its multifaceted request for broad-based injunctive relief” based on the Constitution and on federal and state law. See LaShawn A. v. Kelly, 990 F.2d 1319, 1323 (D.C.Cir.1993).
Instead, Plaintiffs’ federal constitutional claims herein represent, as did the claims in Hanna, “the exact sort of disputes over citizens’ rights with which the federal courts were created to deal.” Hanna, 630 F.2d at 446. The Court declines Defendants’ invitation to abstain from hearing these claims. Accordingly, Defendants’ Motion to Dismiss based upon the doctrine of abstention is DENIED.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss (Docket No. 19) is GRANTED in part and DENIED in part. Plaintiffs’ ADA claims are DISMISSED.
IT IS SO ORDERED.

Footnotes

1

There is no allegation in this case that Congress has foreclosed enforcement of the statute in the enactment itself.

2

The Court finds that Wilder was not overruled by the case of Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1

(1992), and that Wilder and Suter are not inconsistent. See Wood v. Tompkins, 33 F.3d 600, 606 (6th Cir.1994); Loschiavo v.

City of Dearborn, 33 F.3d 548, 551, n. 2 (6th Cir.1994); and Tony L. v. Childers, 71 F.3d 1182, 1188, n. 9 (6th Cir.1995); see

also Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1253 (7th Cir.1997); Jordan v. City of

Philadelphia, 66 F.Supp.2d 638, 647–48 (E.D.Pa.1999); and Marisol A. v. Giuliani, 929 F.Supp. 662, 681–82 (S.D.N.Y.

1996).

3

In light of the Sixth Circuit precedent footnoted above and the 1996 amendment codified at 42 U.S.C. § 1320a–10, the

Court declines to follow the decisions in Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J.2000) and Eric L. v. Bird, 848

F.Supp. 303 (D.N.H.1994), cited by Defendants, which held that the AAA creates no private right of action. See also Yvonne

L. v. New Mexico Dep’t of Human Services, 959 F.2d 883, 889 (10th Cir.1992) (“individual causes of action [under the AAA]

may be appropriate, depending upon the particular section or violation involved.”).

4

Wood involved provisions of the Medicaid Act which allowed participating states to apply for waivers of various

requirements in order to provide home and community-based health services. Under these provisions, states could not

obtain waivers unless they provided “assurances satisfactory to the Secretary” that their waiver plans included “necessary

safeguards ... to protect the health and welfare” of individuals receiving home health care. Wood, 33 F.3d at 602. The court

found there was nothing vague or amorphous about those provisions, since they “involve unambiguous directives that are

well within the ability of the judiciary to enforce.” Id. at 608.

Footnotes

1

There is no allegation in this case that Congress has foreclosed enforcement of the statute in the enactment itself.

2

The Court finds that Wilder was not overruled by the case of Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1

(1992), and that Wilder and Suter are not inconsistent. See Wood v. Tompkins, 33 F.3d 600, 606 (6th Cir.1994); Loschiavo v.

City of Dearborn, 33 F.3d 548, 551, n. 2 (6th Cir.1994); and Tony L. v. Childers, 71 F.3d 1182, 1188, n. 9 (6th Cir.1995); see

also Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1253 (7th Cir.1997); Jordan v. City of

Philadelphia, 66 F.Supp.2d 638, 647–48 (E.D.Pa.1999); and Marisol A. v. Giuliani, 929 F.Supp. 662, 681–82 (S.D.N.Y.

1996).

3

In light of the Sixth Circuit precedent footnoted above and the 1996 amendment codified at 42 U.S.C. § 1320a–10, the

Court declines to follow the decisions in Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J.2000) and Eric L. v. Bird, 848

F.Supp. 303 (D.N.H.1994), cited by Defendants, which held that the AAA creates no private right of action. See also Yvonne

L. v. New Mexico Dep’t of Human Services, 959 F.2d 883, 889 (10th Cir.1992) (“individual causes of action [under the AAA]

may be appropriate, depending upon the particular section or violation involved.”).

4

Wood involved provisions of the Medicaid Act which allowed participating states to apply for waivers of various

requirements in order to provide home and community-based health services. Under these provisions, states could not

obtain waivers unless they provided “assurances satisfactory to the Secretary” that their waiver plans included “necessary

safeguards ... to protect the health and welfare” of individuals receiving home health care. Wood, 33 F.3d at 602. The court

found there was nothing vague or amorphous about those provisions, since they “involve unambiguous directives that are

well within the ability of the judiciary to enforce.” Id. at 608.

5

The Court is aware that this issue has been presented this term to the U.S. Supreme Court. Until that Court rules, however, the

Court is bound by the precedent of the Sixth Circuit.

6

Plaintiffs also assert a claim under the implementing regulation which provides that entities receiving federal assistance

may not, in administering their programs, use criteria or methods of administration which have the effect of subjecting

individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially

impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national

origin. 45 C.F.R. § 80.3(b)(2).

7

Procedural due process rights, unlike substantive due process, involve expectations created by state law. Taylor, 818 F.2d at

794. As to these rights, the state may take them away by affording predeprivation hearings or postdeprivation hearings or

by providing other safeguards. Id. Procedural due process principles protect persons from deficient procedures that lead to

the deprivation of cognizable liberty interests. Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir.2000).

8

In Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005 (N.D.Ill.1989), that court found that the foster children’s relationships

with their siblings were the sort of “intimate human relationships” protected from unjustified interference by the State.

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

_____________________________________

BRIAN A., et al.

)

)

Plaintiffs

) Civ. Act. No. 3:00-0445

) Judge Todd J. Campbell

v.

) Magistrate Judge Joe B. Brown

)

PHIL BREDESEN, Governor of the

)

State of Tennessee; and VIOLA MILLER, )

Commissioner of the Tennessee

)

Department of Children’s Services

)

)

Defendants

)

____________________________________ )

JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED 2010 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

By Joint Stipulation Extending Monito ring, approved by the Court on June 29, 2010 (Dkt. 405), the parties stipulat ed, among other things, that th ey were engaged in good faith negotiations towards a 2010 Modified Settlem ent Agreement and Exit Plan (“the 2010 Exit Plan”), and anticipated presenting the proposed 2010 Exit Plan to the Court for review on or before September 15, 2010.
In a Joint Status Update filed on Septem ber 9, 2010 (Dkt. 406), the parties reported that they continued to engage in good fa ith negotiations towards com pletion of the proposed 2010 Exit Plan but did not anticipate presenting it to the Court for review before October 29, 2010. In a subsequent Joint Status Update filed on Oc tober 28, 2010 (Dkt. 407), the parties stated that

they had made significant progress towards presenting the proposed 2010 Exit Plan to the Court, and would do so on or before November 15, 2010.
After six months of intense, good faith, arm’s length negotiations, the parties have agreed to a proposed 2010 Exit Plan (attached hereto as Ex. A), and hereby present it to the Court for approval. If approved, the 2010 Exit Plan will constitu te a modified set of obligations for the Plaintiff class which, if complied with, ar e designed to lead Defenda nts towards successful termination of jurisdiction over this action.
Pursuant to Section X VII of the January 2009 Modified Settlement Agreement (Dkt. 288), which rem ains in full force and effect, the parties now stipulate and agree, and request Court approval, as follows:
1. The proposed 2010 Exit Plan will replace and supersede the 2009 Modified Settlement Agreement in its entirety and, if approved, will be signed by the Court and entered as a separate docket entry in this action.
2. The proposed 2010 Exit Plan will best fu rther the purposes of the Settlem ent Agreement and protect the Plaintiff class.
DATED: November 10, 2010
APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS: /s/ Marcia Robinson Lowry_______________ MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
-2-

/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 578-7709
ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Douglas Earl Dimond DOUGLAS EARL DIMOND (TN BPR #017953) ELIZABETH C. DRIVER (TN BPR #019363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913
-3-

SO ORDERED:

____________________________________________________________

HONORABLE TODD J. CAMPBELL, U.S.D.J.

DATE

-4-

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

_____________________________________

BRIAN A., et al.

)

)

Plaintiffs

) Civ. Act. No. 3:00-0445

) Judge Todd J. Campbell

v.

)

)

PHIL BREDESEN, Governor of the

)

State of Tennessee; and VIOLA MILLER )

Commissioner of the Tennessee

)

Department of Children’s Services

)

)

Defendants

)

_____________________________________)

JOINT STIPULATION EXTENDING MONITORING

This case was settled by a Settlement Agreement approved by the Court on July 27, 2001.
(See Dkt. No. 109). It provided for “a Technical Assistance Committee [“TAC”] of five neutral
experts in the child welfare field . . . to assist the state in meaningful implementation of the
requirements of this Settlement Agreement” and for “an independent and neutral party who will
monitor compliance with the terms of this Settlement Agreement.” (Id. at §§ XIV.A; XV.A).
Since then, this Court has approved several agreed-upon modifications to the Settlement
Agreement concerning monitoring, including extensions of monitoring:
1. The “Stipulation of Settlement” approved by the Court on D ecember 29, 2003, extended Period II under the Settlement Agreement by 15 months and redefined Period III to be the 18-month period beginning December 1, 2005, and ending May 31, 2007. (See Dkt. No. 190 at 11). It also provided that, for a defined term, the Brian A. technical assistance committee (the “TAC”) would “function as the independent monitor” for purposes of Section XV of the Settlement Agreement. (See id. at 9).

2. By “Stipulation Extending Monitoring,” entered by the Court on February 28, 2006, it was agreed and ordered, in pertinent part, that “[t]he TAC shall continue in the role of independent monitor, as defined in Section XV of the Settlement Agreement, at least for the duration of Period III (as redefined in the Stipulation of Settlement, December 1, 2005 – May 31, 2007) plus an additional three months (the ‘Continuation Period’).” (Dkt. No. 250 at 3).
3. By “Stipulated Modifications to the Settlement Agreement and Request for Court Approval of Modified Settlement Agreement,” entered by the Court on May 9, 2007, Period III was extended by a period of 13 months, such that Period III began on December 1, 2005 and ended on June 30, 2008. (See Dkt. No. 264 at 2). It was agreed and ordered, in pertinent part, that the TAC would continue in its role as independent monitor at least for the duration of the redefined Period III, plus an additional three month Continuation Period. (See id. at 3). The TAC was to report on performance under the entire Settlement Agreement during and after the end of the redefined Period III. (See id.).
4. By “Stipulated Modifications to the Settlement Agreement and Request for Court Approval of the 2008 Modified Settlement Agreement,” entered by the Court on October 1, 2008, a Period IV was created under the Settlement Agreement, which began on July 1, 2008, and ended on December 31, 2009. (See Dkt. No. 282 at 3). It was agreed and ordered, in pertinent part, that the TAC would continue in its role as independent monitor for at least for the duration of the Period IV, plus an additional six-month Continuation Period. (See id.). The TAC was to report on performance under the entire Settlement Agreement during and after the end of the Period IV, and Defendants would continue to fund the TAC’s monitoring and technical assistance functions. ( See id. at 3-4). These stipulations further required that, prior to the June 30, 2010, conclusion of the Continuation Period, the parties, in consultation with the TAC, would determine whether it was advisable for the TAC to continue in the role of independent monitor following the expiration of the Continuation Period or whether a separate independent monitor should be retained to fulfill the responsibilities described in Section XV of the Settlement Agreement. (See id. at 6).
The parties are now engaged in good faith negotiations toward a “2010 Modified
Settlement Agreement and Exit Plan.” If such negotiations are successful, this agreement will
constitute a significantly modified set of obligations for the Plaintiff class which, if complied
with, are designed to lead Defendants towards successful termination of jurisdiction over this
-2-

action. The parties anticipate presenting this plan to the Court for review on or before September

15, 2010.

Pursuant to the 2009 Modified Settlement Agreement (Dkt. No. 288), which remains in

full force and effect, the parties and the TAC have consulted numerous times concerning the

continuation of monitoring following the expiration of the Continuation Period on June 30, 2010.

THE PARTIES HEREBY AGREE AND STIPULATE AS FOLLOWS:

1.

The TAC shall continue in the role of independent monitor, as defined in

Section XV of the 2009 Modified Settlement Agreement (Dkt. No. 288), for an additional six-

month period (i.e., through December 31, 2010).

2.

The TAC shall consist of three to five neutral experts in the child welfare

field. In no event shall the number of standing TAC members be less than three or more than

five.

3.

The TAC shall report on performance under the entire Settlement

Agreement for Period IV.

4.

Defendants shall continue to fund the TAC’s monitoring and technical

assistance functions for the additional six-month period. The TAC shall exercise final authority

over its use and expenditure of monitoring and technical assistance funding.

5.

The contemplated continued monitoring will best further the purposes of

the Settlement Agreement.

6.

The 2009 Modified Settlement Agreement (Dkt. No. 288) remains in full

force and effect.

DATED: June 29, 2010

-3-

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Marcia Robinson Lowry_______________ MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. SunTrust Center, 22nd Floor 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. SunTrust Center, 22nd Floor 424 Church Street Nashville, TN 37219 (615) 256-6666
OF COUNSEL FOR PLAINTIFFS:
RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Memphis, TN 38105 (901) 578-7709
JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
-4-

WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
_/s/ Douglas E. Dimond__________________ DOUGLAS E. DIMOND (TN BPR #017953) ELIZABETH C. DRIVER (TN BPR #019363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913

SO ORDERED:

____________________________________________________________

HONORABLE TODD J. CAMPBELL, U.S.D.J.

DATE

-5-

WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
_/s/ Douglas E. Dimond__________________ DOUGLAS E. DIMOND (TN BPR #017953) ELIZABETH C. DRIVER (TN BPR #019363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913

SO ORDERED:

____________________________________________________________

HONORABLE TODD J. CAMPBELL, U.S.D.J.

DATE

-5-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

BRIAN A., et al. v. PHIL BREDESEN, et al.

) ) ) NO. 3:00-0445 ) JUDGE CAMPBELL )

ORDER Pending before the Court is Defendants’ Motion to Dism iss Supplemental Complaints as Moot (Docket No. 398). Plaintiffs have filed aResponse (Docket No. 400), in which they agree that the Supplemental Complaints should be dismissed without prejudice. Therefore, Defendants’ Motion to Dismiss (Docket No. 398) is GRANTED, and Plaintiffs’ Supplemental Complaints are DISMISSED without prejudice. The hearing scheduled for April 19, 2010, is canceled, and all other pending Motions a re denied as moot. IT IS SO ORDERED.

___________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

BRIAN A., et al. v. PHIL BREDESEN, et al.

) ) ) NO. 3:00-0445 ) JUDGE CAMPBELL )

ORDER Pending before the Court are Defendants’ Motion to Dismiss Supplemental Complaint and Second Supplemental Complaint (Docket No. 356) and Defendants’ Motion to Take Judicial Notice and to Strike (Docket No. 373). For the reasons stated in the accom panying Memorandum, Defendants’ Motions are DENIED. IT IS SO ORDERED.

___________________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

Case 3:00-cv-00445 Document 377 Filed 02/23/10 Page 1 of 1 PageID #: 7984

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

---------------------------------------------------------------------x

BRIAN A., by his next friend, Bobbi Jean Brooks;

)

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES C., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita Veasy; )

TERRY G., by her next friend, Carol Oldham;

)

ANDREW H., by his next friend, Laura Hash;

)

KENNETH I., by his next friend, Russell Morel;

)

NANCY J., by her next friend, Laura Hash; and

)

DONNA K., by her next friend, Laura Hash; and

)

KIERA L., by her next friend, Laura Hash;

)

JOSHUA M., by his next friend, Angela Blevins;

)

on their own behalf and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

--against--

)

)

PHIL BREDESEN, Governor of the State

)

of Tennessee; and

)

VIOLA MILLER, Commissioner of the

)

Tennessee Department of Children’s Services,

)

)

Defendants.

)

---------------------------------------------------------------------x

Civil Action No. 3-00-0445
Judge Campbell Magistrate Brown

SECOND SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Pursuant to Rule 15(d) of the Federal Rule s of Civil Procedure, Plaintiffs supple ment their Complaint (Docket No. 1) (the “Original Complaint”) as follows:

2 Case 3:00-cv-00445 Document 345 Filed 12/04/09 Page 1 of 8 PageID #: 6750

1. Plaintiffs incorporate herein by referen ce, in its en tirety and as if set forth verbatim, their Or iginal Complaint, including each and eve ry allegation, cause of action, and request for relief set forth therein.
2. Plaintiffs also inco rporate herein by reference, in its entirety and as if set forth verbatim, their Proposed Supplem ental Complaint dated November 9, 2009 (attached as Exhibit A to Docket No. 335), including each and every a llegation, cause of action, and request for relief set forth therein.
JURISDICTION
3. This is an action pursuant to 42 U.S.C. § 1983, alleging violations of the United States Constitution and federal statutes, and of the Consent Decree in this action, which has the force of federal law. This court has jurisdiction over these federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This Court also has continuing jurisdiction to enforce the term s of the Consent Decree in this matter.
SUPPLEMENTAL PLAINTIFF AND NEXT FRIEND
4. Joshua M. is 15 years old and resides in Union County. 1 He was removed from his home by the Tennessee Department of Children’s Services (“DCS”) on or about November 9, 2009 on an allegation that he is dependent and neglected. On or about Novem ber 9, 2009, a bench order was issued by the Juvenile Court of Union County, ordering that temporary legal custody of Joshua M. be awarded to DCS, and further ordering that a hearing be held on
1 A p seudonym has been used in order to protect the identity of the minor Plaintiff in this Second Supplemental Complaint.
2 3
Case 3:00-cv-00445 Document 345 Filed 12/04/09 Page 2 of 8 PageID #: 6751

November 13, 2009. At the tim e of the filing of the instant Second Supplem ental Complaint, Joshua M. is in the legal custody of DCS awaiting his commitment hearing, at which the judge of the Juvenile Court will determ ine whether he sh ould remain in DCS custody, be returned to his home, or be placed with a relative o r other non-DCS caregiver. At the tim e of the filing of the instant Second Supplemental Complaint, Joshua M. is not committed to the legal custody of DCS based solely upon an allegation or adjudication of a delinquent or criminal act.
5. Plaintiff Joshua M. appears through his Next Friend Angela Blevins. Ms. Blevins is the Guardian Ad Litem attorney for Joshua M. pursuant to an order issued by the Juvenile Court of Union County. Ms. Blev ins maintains her principal office at 109 Leinart S treet, Suite 101, Clinton, TN 37716.
6. Joshua M., Supplem ental Plaintiff in this Second Supplem ental Complaint, is at imminent risk of har m from Defendants’ implementation of Section 30 of Tennessee Public Chapter No. 531, which created a new subsection “f ” to Tennessee Code Annotated (“T.C.A.”) § 37-2-205 and became effective on July 7, 2009 (the “Over-Commitment Law”).
CAUSES OF ACTION
First Cause of Action (Contempt of § I(A)(2) of the Consent Decree)
7. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
8. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated
3 4
Case 3:00-cv-00445 Document 345 Filed 12/04/09 Page 3 of 8 PageID #: 6752

class members under § I(A)(2) of the Consent Decree, and thus places Defendants in contempt of § I(A)(2) of the Consent Decree.
9. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Second Cause of Action (Contempt of § I(A)(12) of the Consent Decree) 10. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth. 11. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members under § I(A)(12) of the Consent D ecree, and thus places Defendants in contem pt of § I(A)(12) of the Consent Decree. 12. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
4 5
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Third Cause of Action (Contempt of § I(A)(13) of the Consent Decree)
13. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
14. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members under § I(A)(13) of the Consent D ecree, and thus places Defendants in contem pt of § I(A)(13) of the Consent Decree.
15. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Fourth Cause of Action (Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution)
16. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
17. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The Over-Commitment Law creates classifications among similarly situated
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children subject to com mitment decisions and treats them differently without legally sufficient justification.
Fifth Cause of Action (Due Process under the Fourteenth Amendment
to the United States Constitution)
18. Each and every allegation in this Second Supplemental Complaint is incorporated herein as if fully set forth.
19. The Over-Commitment Law, on its face and as applied, violates the rights of the Supplemental Plaintiff in this Second Supplementa l Complaint and all other sim ilarly situated class members awaiting judicial commitment decisions to a fair hearing and to due process under the Fourteenth Amendment to the United States Constitution.
PRAYER FOR RELIEF
20. WHEREFORE, Plaintiffs respectfully request that this Honorable Court, pursuant to its powers under Rule 57 of the Federal Ru les of Civil Procedur e and its continuing jurisdiction of this matter under the Consent Decree,
a. Declare that: i. The Over-Commitment Law, on its face and as applied, v iolates §§ I(A)(2), I(A)(12), and I(A)(13) of the Consent Decree, and places Defendants in contempt of the Consent Decree; ii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Equa l Protection Clause of the Fourteenth Amendment to the United States Constitution;
iii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Due Pro cess Clause of the Four teenth Amendment to the United States Constitution; 6 7
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b. Preliminarily and permanently en join the im plementation of the OverCommitment Law, T.C.A. § 37-2-205(f);
c. Award to Plain tiffs the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920, and Federal Rules of Civil Procedure 23(e) and (h); and
d. Grant such other and further equitabl e relief as the Court deem s just, necessary and proper to protect Pl aintiffs from further harm by Defendants.

DATED: November 12, 2009

Respectf

ully Submitted,

ATTORNEYS FOR PLAINTIFFS:

/s/ Marcia Robinson Lowry MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) YASMIN GREWAL-KOK (pro hac vice) PATRICK S. ALMONRODE (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Fl. New York, NY 10001 (212) 683-2210

/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) JACQUELINE B. DIXON (TN BPR #012054) HOLLINS, WAGSTER,
WEATHERLY & RAYBIN, P.C. SunTrust Center, 22nd Floor 424 Church Street Nashville, TN 37219 (615) 256-6666

RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 543-4299

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JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC One Commerce Square, Suite 1700 Memphis, TN 38103 (901) 525-1322 WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
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 IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

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BRIAN A., by his next friend, Bobbi Jean Brooks;

)

TRACY B., by her next friend, Pamela Pallas;

)

JACK and CHARLES C., by their next friend,

)

Linda Lloyd;

)

AMY D., by her next friend, Frank Koon;

)

DENISE E., by her next friend, Linda Lloyd;

)

CHARLETTE F., by her next friend, Juanita Veasy; )

TERRY G., by her next friend, Carol Oldham;

)

ANDREW H., by his next friend, Laura Hash;

)

KENNETH I., by his next friend, Russell Morel;

)

NANCY J., by her next friend, Laura Hash; and

)

DONNA K., by her next friend, Laura Hash; and

)

KIERA L., by her next friend, Laura Hash;

)

Civil Action No. 3-00-0445

on their own behalf and on behalf of all others

)

Judge Campbell

similarly situated,

)

Magistrate Brown

)

Plaintiffs,

)

)

--against--

)

)

PHIL BREDESEN, Governor of the State

)

of Tennessee; and

)

VIOLA MILLER, Commissioner of the

)

Tennessee Department of Children’s Services,

)

)

Defendants.

)

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SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Pursuant to Rule 15(d) of the Federal Rule s of Civil Procedure, Plaintiffs supple ment their Complaint (Docket No. 1) (the “Original Complaint”) as follows:

INTRODUCTION

1. Plaintiffs – children in the legal custody of the Tennessee Departm

ent of

Children’s Services (“DCS”) – file this Supplem ental Complaint in this action to address the

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imminent risk of har m faced by t he Supplemental Plaintiffs, na med herein and all sim ilarly situated Brian A. class members, from Section 30 of Tenne ssee Public Chapter No. 531, which created a new subsectio n “f” to Tennessee C ode Annotated (“T.C.A.”) § 37-2-205 and becam e effective on July 7, 2009.
2. T.C.A. § 37-2-205(f) (the “Over-Commitment Law”) establishes a pre-set limit on the number of children committed to DCS custody fo r whom the state will a llocate resources. The Over-Commitment Law places a limit on the number of child commitments for each county based purely on the county’s child population and a pre-set figure called the “average state commitment rate per thousand children.” If the pre-set limit is exceeded in a county – as a result of decisions of the Juvenile C ourt judge(s) employed by that coun ty – that county must pay the state’s “actual daily cost” for foster care for each child committed beyond the limit, for as long as that child remains in state custody.
3. The Over-Commitment Law was signed into law with the intended and inevitable result of pressuring Juvenile Court judges to commit fewer children to DCS custody, in order to save state funds. The new law was developed by DCS, and targets certain Juvenile Court judges who DCS believ ed were “over-co mmitting” – i.e., committing children who should not have been committed – even though DCS initiates n early all petitions seeking the com mitment of children to DCS custody as dependent and neglect ed, and even though DCS has the ability t o seek de novo review on appeal of any commitment decision it believes improper or unlawful.
4. Fundamental due process and specific federal statutory law require that commitment decisions be based entirely on the facts of each child ’s case, and the Consent Decree specifically requ ires Defendants to ensu re this protection for Brian A. class members.
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However, the Over-Commit ment Law affects and interferes with jud ges’ decision-making by
injecting into individual judici al commitment decisions a numbers game of how many children
have already been committed to DCS custody in a particular county and whether that county will
have the ability to provide resources for foster care if the pre-set limit is exceeded. The Over-
Commitment Law thus places children at imminent risk of significant harm.
5. Since the Over-Commitment Law took effe ct in July o f 2009, every sing le
commitment decision made by any Juvenile Court judge in the state counts against the pre-set
limit for the county in which the judge sits. The pre-set numbers have absolutely nothing to do
with the factors affecting commitment decisions in any particular county, much less the facts of a
particular child’s individual case.
6. In at least one “high comm itment” county targeted by the Over-Commit ment
Law, commitment decisions are in f act already being affected by the new law and children are
being treated differently – to their detriment – as a result. These effects include:
a. children having to spend one or m ore nights in detention (jail) while DCS and the court search for appropriate placements that will not result in an official commitment to DCS custody;
b. children sleeping late into the evening on courtroom benches or in a DCS office, when before passage of the Over-Comm itment Law they would have been committed to foster homes;
c. the consideration of the use of cer tain emergency shelters to house children who, before passage of the Over-Commitment Law, would have been committed to foster hom es, because these shelter placem ents do not count as “commitments” for purposes of the Over-Commitment Law;
d. the exercise of jurisdiction over a child’s case, when jurisdiction is proper in more than one county, based on the comm itment rates of the counties involved and not on the convenience or best interests of the parties and witnesses; and
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e. the approval of “tenuo us” placements for children as an alternative to commitment to DCS custody, although the alternative comm itments often later fail – for instance, when DC S promises but does not provide necessary services – resulting in those children being eventually committed to DCS custody, having been subjected to an uncertain situation and an additional placement move.
7. The Supplemental Plaintiffs are Brian A. class members in a “high comm itment” county who are in DC S custody and awaiting hearings on commitment petitions. At those hearings, a Juvenile Court judge will determ ine whether to return the Supplem ental Plaintiffs to their homes, place them with relatives or ot her non-DCS caregivers, or keep them in DCS custody as dependent and neglected. Their hearings will occur within 24 hours of the date of this Supplemental Complaint. The Supplem ental Plaintiffs are therefore at ri sk of imminent har m from the effects of the Over-Commitment Law on their judge’s decision-making.
8. The Over-Commitment law unlawfully aff ects all commitment decision-making, regardless of the outco me in a particu lar case, and thu s all Brian A. class m embers who will come before judges for comm itment decisions, particularly in “high comm itment” counties deemed by DCS as historically at risk of exceeding their pre-set commitment limits, will be subjected to the same imminent risk of harm as Supplemental Plaintiffs.
9. This Supplemental Complaint is brought against the sam e Defendants as the Original Complaint – the Commissioner of DCS, in her official capacity, and the Governor of Tennessee, in his official capacity. Defendants together are responsible for the developm ent, intent, signing, implementation and inevitable result of the Over-Commitment Law. Defendants are also responsible for the state’s fulfillment of its binding obligations under the Consent Decree, over which this Court has continuing jurisdiction.
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10. The Supplemental Plaintiffs assert claim s for Defendants’ non-com pliance with and contempt of specific provisions of the Brian A. Consent Decree. The Over-Comm itment Law violates § I(A)(13) of the Consent Decree, which expressly requires that “[D]efendants shall commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions of the Settlem ent Agreement.” Because it estab lishes pre-set limits for th e allocation of DCS resources for children place d in state custody, the intended and inevitable result of the Over-Commit ment Law is to excuse the Brian A. Defendants from the binding Consent Decree obligation to provide all resources (including financial) to implement the decree for all foster children in DCS custody.
11. The Over-Commitment Law also violates § I(A)(2) of the Consent Decree, which provides specific protection to Plaintiff children from actions, practices or policies of Defendants that interfere with the capacity of judges to m ake case-specific decisions concerning efforts to preserve families, the removal of children from their homes, and the commitment of children to DCS custody.
12. Additionally, the Ove r-Commitment Law violates § I(A)(12) of the Consent Decree, which provides specific protection to Plaintiff child ren from any interference by Defendants with their constitutional and other legal rights, including their rights to fair hearings, in any judicial proceedings to which they ar e subjected. The Over-Co mmitment law violates Plaintiffs’ rights to equal protection and to due process under the Fourteenth Am endment to the United States Constitution.
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13. The Supplemental Plaintiffs seek declar atory and injunctive relief, including a preliminary injunction and an order perm anently enjoining the im plementation of the OverCommitment Law.
JURISDICTION
14. This is an action pursuant to 42 U.S.C. § 1983, alleging violations of the United States Constitution and federal statutes, and of the Consent Decree in this action, which has the force of federal law. This court has jurisdiction over these federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This Court also has continuing jurisdiction to enforce the term s of the Consent Decree in this matter.
SUPPLEMENTAL PLAINTIFFS AND NEXT FRIENDS
15. As of the date of the in stant Supplemental Complaint, each of the Supplem ental Plaintiffs has been removed from his or her home on an allegation of abuse and/or neglect, is the subject of a petition seeking his/her comm itment to DCS c ustody as dependent and neglected, and is in the le gal custody of DCS pursuant to an ex parte order issued by the Juvenile Court judge of his or her county. Under T.C.A. § 37-1-117, a child rem oved from his or her hom e must be provided a judicial hearing within 72 ho urs of removal from the home, at which a judge is to determine whether the child should rem ain in DCS custody, be returned to his or her hom e, or be placed with a relative or other non-DCS caregiver. Each of the Supplemental Plaintiffs is in DCS legal custody, awaiting a hearing under T.C.A. § 37-1-117.
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16. Andrew H. is 23 months old and resides in Anderson County. 1 He was removed from his home by DCS on or about Nove mber 6, 2009, on an allegation of neglect. On or about November 6, 2009, a petition was filed in the J uvenile Court of Anderson County, requesting that Andrew H. be committed to DCS custody as dependent and neglected. On or about November 9, 2009, an ex parte order was issued by the Juvenile Court of Anderson County, authorizing the tem porary placement of Andrew H. in the legal custody of DCS pending a hearing on the commitment petition, scheduled for Nove mber 9, 2009. At the tim e of the filing of the instant Supplemental Complaint, Andrew H. is in the legal custod y of DCS a waiting his hearing, and is not comm itted to the legal cus tody of DCS based solely upon an a llegation or adjudication of a delinquent or criminal act.
17. Supplemental Plaintiff Andrew H. appear s through his Next Friend Laura Hash. Ms. Hash is the Guardian Ad Litem (“GAL”) attorney for Andrew H. pursuant to an order issued by the Juvenile Court of Ande rson County. Ms. Hash m aintains her principal office at 109 Leinart Street, Suite 101, Clinton, TN 37716.
18. Kenneth I. is 2 years old and resides in Anderson County. He was re moved from his home by DCS on or about Novem ber 6, 2009, on an allegation of neglec t. On or about November 6, 2009, a petition was filed in the J uvenile Court of Anderson County, requesting that Kenneth I. be co mmitted to DCS custody as dependent and negl ected. On or about November 9, 2009, an ex parte order was issued by the Juvenile Court of Anderson County, authorizing the tem porary placement of Kenne th I. in the legal custody of DCS pending a hearing on the commitment petition, scheduled for Nove mber 9, 2009. At the tim e of the filing
1 Pseudonyms have been used in order to protect the identities of the minor Supplemental Plaintiffs.
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of the instant Supplem ental Complaint, Kenneth I. is in the legal cu stody of DCS awaiting his hearing, and is not comm itted to the legal cus tody of DCS based solely upon an a llegation or adjudication of a delinquent or criminal act.
19. Supplemental Plaintiff Kenneth I. appears through his Next Friend Russell Morel. Mr. Morel is the Court Appointed Special Attorney (“CASA”) fo r Kenneth I. pursuant to an order issued by the Juvenile Court of Anderson County. Mr. Morel maintains his principal office at 161-D Robertsville Road, Oak Ridge, TN 37830.
20. Nancy J. is 4 years old a nd resides in Anderson Count y. She was rem oved from her home by DCS on or about Novem ber 6, 2009, on an allegation of neglect. On or about November 6, 2009, a petition was filed in the J uvenile Court of Anderson County, requesting that Nancy J. be committed to DCS custody as dependent and neglected. On or about November 9, 2009, an ex parte order was issued by the Juvenile C ourt of Anderson County, authorizing the temporary placement of Nancy J . in the leg al custody of DCS pe nding a hearing on the commitment petition, scheduled for Nove mber 9, 2009. At the tim e of the filing of the instant Supplemental Complaint, Nancy J. is in the le gal custody of DCS awaiting her hearing, and is not committed to the leg al custody of DCS based so lely upon an allegation or adjudication of a delinquent or criminal act.
21. Supplemental Plaintiff Nancy J. appears through her Next Friend Laura Hash. Ms. Hash is the GAL at torney for Nancy J. pursuant to an order issued by the Juvenile Court of Anderson County.
22. Donna K. is 5 years old and resides in Anderson County. She was rem oved from her home by DCS on or about Novem ber 6, 2009, on an allegation of neglect. On or about
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November 6, 2009, a petition was filed in the J uvenile Court of Anderson County, requesting that Donna K. be co mmitted to DCS custody as dependent and neglected. On or about November 9, 2009, an ex parte order was issued by the Juvenile Court of Anderson County, authorizing the temporary placement of Donna K. in the legal custody of DCS pending a hearing on the commitment petition, scheduled for November 9, 2009. At the tim e of the filing of th e instant Supplemental Complaint, Donna K. is in the legal cus tody of DCS awaiting her hearing, and is not committed to the legal custody of DCS based solely upon an allegation or adjudication of a delinquent or criminal act.
23. Supplemental Plaintiff Donna K. appears through her Next Friend Laura Hash. Ms. Hash is the GAL attorney for Donna K. pursuan t to an order issued by the Juvenile Court of Anderson County.
24. Kiera L. is 6 years old a nd resides in Anderson County. She was rem oved from her home by DCS on or about Novem ber 6, 2009, on an allegation of neglect. On or about November 6, 2009, a petition was filed requestin g that Kiera L. be comm itted to the custody of DCS as dependent and neglected. On or about November 9, 2009, an ex parte order was issued by the Juvenile Court o f Anderson County, author izing the temporary placement of Kiera L. in the legal custody of DCS pending a hearing on the comm itment petition, scheduled for November 9, 2009. As of the date of the instant Supplemental Complaint, Kiera L. is in the legal custody of DCS awaiting her hearing, and is n ot committed to the leg al custody of DCS based solely upon an allegation or adjudication of a delinquent or criminal act.
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25. Supplemental Plaintiff Kiera L. appears through her Next Friend Laura Hash. Ms. Hash is the GAL attorney for Kiera L. purs uant to an order issued by the Juvenile Court of Anderson County.
26. As further alleged below, each of the Suppl emental Plaintiffs is at imm inent risk of harm from Defendants’ implementation of the Over-Commitment Law.
ORIGINAL COMPLAINT ALLEGATIONS CONCERNING DEFENDANTS’ FAILURE TO PROVIDE ADEQUATE RESOURCES
FOR FOSTER CHILDREN IN DCS CUSTODY
27. The Plaintiffs incorporate herein by reference, in its en tirety and a s if set f orth verbatim, their Orig inal Complaint, including each and every allegation and each and every request for relief set forth therein.
28. The allegations in th e Original Complaint concerned the failure of Defendants to provide adequate resources and services to meet their legal obligations to foster children in DCS custody. For example, Plaintiffs alleged that:
a. “Defendants have failed to provide the leadership, support, and resources necessary to adequately protect a nd care for the Pla intiff children as required by law.” (Original Complaint, ¶ 9).
b. “Defendants’ failure to protect fost er care children in DCS custody and provide them and their families with appropriate, legally required services has harmed these children and endangere d their safety, sense of stability and developmental well-being.” (Id., ¶ 7).
29. Accordingly, “Defendants’ systemic failure to fulfill their legal obliga tions to protect Tennessee’s most vulnerable children and provide them and their f amilies with legally required services has s ubjected the Plaintiff child ren to significant harm and threatened their
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safety and well-being, in violat ion of their rights under the Unite d States Constitution, federal
statutes, and federal common law.” ( Id., ¶ 2). The Original Com plaint sought “declaratory and
injunctive relief against Defendants to stop thes e continued violations and to ensure th at
Defendants adequately care for and protect children in state custody as required by law.” (Id.)
30. In the Orig inal Complaint, Plaintiffs specified the serv ices and resour ces that
Defendants had failed to provide. For example, Plaintiffs alleged that:
a. There was “a funda mental lack of sufficient num bers and types of placements necessary to meet the needs of foster children in Tennessee.” (Id., ¶ 150).
b. DCS had “failed to recruit and reta in a sufficient num ber of adequate foster families” (id., ¶ 159), and that “[i]n addition to poor pre-placem ent and on-going support, inadequate com pensation impedes both the recruitment and retention of foster families in Tennessee. The rates pa id to foster parents to house, clothe an d feed the children in their care are significantly below U.S. Department of Agriculture (U SDA) figures concerning the cost of caring for a child in Tenn essee with the result tha t children in state custody have less money available for basic necessities, like food and clothing, than the f ederal government has determ ined is necessary.” (Id., ¶ 160).
c. DCS had “fail[ed] to provide children with legally required services while in foster care, including providing acce ss to education, services to enable children to return home or to have visits with siblings and other fam ily members while in DCS custody, servic es to be freed for adoption and placed in permanent homes, and services to live independently once th ey are discharged from Defendants’ custody at age eighteen.” (Id., ¶ 161).
d. Older youths in DCS custody “receive[d] inadequate or no preparation for independent living, although DCS is aw are that the coping and survival skills of many older foster children are seriously deficient and that they are not prepared to live on their own when they are disch arged from state custody.” (Id., ¶ 182).
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THE CONSENT DECREE
31. On July 27, 2001, this Court approved the parties’ agreement settling Plaintiffs’
claims, and entered a Consent Decree which requi red comprehensive reform of the child welfare
system in Tennessee. (Docket No. 112). On January 13, 2009, the C ourt signed a Modified
Settlement Agreement. (Docket No. 289). All pa rties approved all terms of the Consent Decree
and the Mo dified Settlement Agreement (collectively, the “Consent Decree”). T he Consent
Decree contains all of the terms and provisions currently operative in this matter.
32. The Consent Decree certified and defined the class of Plaintiffs entitled to the
relief provided therein, and to enforce its terms. Section I(B) of the Consent Decree states:
Pursuant to the terms of this Settlement Agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the le gal custody of the Tennessee Departm ent of Children’s Services. “Foster children” shall mean all children who are or will be in the legal custody of [DCS], excluding ch ildren who are or will be in the legal custody of [DCS] upon an alle gation or adjudication of a delinquent or crim inal act. Children who are or will be in th e custody of [DCS] upon an alleg ation or adjudication of an unruly or status offense shall b e included in the class, and children who are or will be in the custody of [DCS] upon an allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who re main in the legal custody of [DCS], shall be included in the class.
33. Critically, the Consent Decree specifically states that “[t]his court shall have
continuing jurisdiction of this action to ensure compliance with the te rms of this Settlem ent
Agreement for as long as the Settlement Agreement remains in effect.” (Preamble, ¶ C).
34. All provisions of the Consent Decree are enforceable. Section XVIII(A)(1) of the
Consent Decree specifically states that “[a]ll of the provisions in this Se ttlement Agreement are
separately and independently enforceable, as set forth in this Settlement Agreement.”
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35. On the issue of adequate resources , the Consent Decree requires Defendants to allocate all the resources, including financial resources, required to fulfill their obligations under the Consent Decree. Section I(A)(13) of the Consent Decree states:
Except where a par ticular provision of this Settlem ent Agreement establishes a specific limit on the res ources required to be allocated, defendants shall comm it all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions of the Settlement Agreement.
36. For example, as a resu lt of § I(A)(13) of the Consent Decree, Defendants m ust allocate and provide the resources required for the care of all Brian A. class members, such as the resources required to provide: assessments and case p lanning (see Consent Decree, §§ VI(D); VII (generally)); a reasonable and appropriate education (see id., § VI(E)); diligent searches for parents and relatives (see id., § VIII(C)); placements for foster children, including the daily cost of care in f oster homes or, in certain circ umstances, placements in certain facilities ( see id., §§ IX(D), (E)); the cos t of front line case managers and supervisors to monitor the saf ety, wellbeing and permanency of foster children (see id., § V); and independent liv ing services for those children who qualify for them (see id., § VI(I)).
37. The Consent Decree als o provides specific protection to Plaintiff children from any actions, practices or policies of Defendants that interfere with the capacity of judges to make case-specific decisions concerning efforts to preserve families, the removal of children from their families, and the comm itment of children to DCS custody. Section I(A)(2) of the Consent Decree states:
The state should m ake reasonable efforts to avoid foster care placem ent by providing services to preserve the biologi cal family whenever that is reasonably possible. However, child welfare decis ion-makers must have the ca pacity to make determinations as to when making effo rts to preserve the biological family,
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or leaving the child with that family, is ne ither safe for the child nor likely to lead to an appropriate result for the child. (Emphasis added).
38. The Consent Decree further provides specific protection to Plaintiff children from any interference by Defendants with the ir constitutional and other legal rights, including their rights to fair hearings, in any jud icial proceedings. Section I(A)(12) of the Consen t Decree states:
All parties in judicial proceed ings involving neglect, abuse, unruly and delinquency should be provided with a fair hearing and their constitutional and other legal rights should be enforced and recognized.
39. The Consent Decree als o provides that Plai ntiffs may move this Court to enforce its terms. Section XVIII(B)(2)(c) of the Consent Decree states:
Plaintiffs may bypass the dispute resolu tion provisions of this Settlem ent Agreement and seek immediate relief in court if plaintiffs clearly demonstrate that DCS action or inaction in contravention of this Settlement Agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
FEDERAL STATUTORY AND REGULATORY REQUIREMENTS FOR CASE-SPECIFIC COMMITMENT DECISIONS
40. In addition to th e basic requirements of a fair hearing and due p rocess, and the specific requirement in the Consent Decree that j udges as “child welfare decision-makers” have the “capacity” to make individualized commitment decisions, federal statutes and regulations and official issuances of the Federal Departm ent of Health and Human Services (“HHS”), requi re that initial judicial determinations of “reasonable efforts” to avoid state custody be based on the facts of each child’s case.
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41. Title IV-E o f the Social Security Act and, specifically, the Adoption Assistance and Child Welfare Act of 1980, as am ended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 670 et seq., (the “AAA”) creates a joint federal- state program whereby states receive federal reimbursements for certa in foster-care and adoption expenses if they enter into a “qualifying plan” approved by HHS, and comply with its terms.
42. Tennessee has entered into a qualif ying State Plan pursuant to Title IV- E of the Social Security Act, and has availed itself of the funds offered by Congress through the AAA.
43. Under the Tennessee Title IV-E State Plan, the state has ag reed to provide child welfare services in com pliance with the statutes and adm inistrative directives of the AAA, and with “all applicable Federal regulations and other official issuances” of HHS.
44. The AAA requires that, prior to the pl acement of a child in foster care, “reasonable efforts” shall be made “to prevent or eliminate the need for removing the child from the child’s home,” and that, in d etermining whether such reasonable efforts were m ade, “the child’s health and safety shall be the paramount concern.” (42 U.S.C. § 671(a)(15)).
45. The federal regulations im plementing the AAA require th at a judicial determination “that continuation of residence in the hom e would be contrary to the welfare, or that placement would be in the best interest, of the child” be made “in the f irst court ruling that sanctions (even temporarily) the removal of a child from home.” (45 C.F.R. § 1356.21(c)).
46. The federal regulations im plementing the AAA require that the judicial determination regarding the child’s welfare and whether reasonable efforts were made to prevent
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removal “must be explicitly documented and must be made on a case-by-case basis.” (45 C.F.R. § 1356.21(d)).
47. The HHS Child Welfare Policy Manual – an official issuance of HHS – states that the judicial determinations required by Title IV- E must be m ade on a “case by ca se basis” to ensure that the “individual circumstances of each child before the court are properly considered.” (HHS Child Welfare Policy Manual, § 8.3A.9).
48. The HHS Child Welfare Policy Manual also states that “[i]n each individual case, the court and the State must dete rmine the le vel of effort that is rea sonable, based on safety considerations and the circumstance of the family.” (Id., § 8.3C.4).
49. The HHS Child Welfare Policy Manual further states that judicial determinations “made on a case-by-basis” serve as “important safeguard[s] against inappropriate agency action.” (Id., § 8.3A.7).
50. The requirement in these federal statutor y provisions, regula tions and official issuances of HHS that child-welfare judicial d ecisions be made on a case-by-case basis do not allow the considerations in th e decision-making process in a particu lar child’s case that are forced upon Tennessee’s Juvenile Court judges as the intended and inevitable result of the OverCommitment Law, such as the number of child ren already committed to DCS custody in their counties and whether their counties will have the ability to provide resources for foster care if their pre-set limits are exceeded.
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THE OVER-COMMITMENT LAW
51. In late 2008, DCS was instructed by th e administration of Tennessee Governor Phil Bredesen to find ways to reduce the agency’s budget for the fiscal year beginning July 1, 2009 and ending June 30, 2010 (“FY 2010”).
52. Defendants believed that Juvenile Court judges in some counties were overusing and improperly using their authority to comm it children to DCS custody, and that those judges were “over-committing” – i.e., committing children to DCS custody who, in the view of the DCS officials, should not have been committed.
53. DCS determined it could achieve its required budget reductions by decreasing the number of children comm itted to DCS custody. The Budget for the State of Tennessee for F Y 2010 included the following perform ance standard for DCS Custody Services: “Reduce the number of dependent/neglect, unruly children entering out-of -home care,” by s pecifically reducing the number of “new entries” into DCS custody by over 600 children.
54. The state’s “Base Budget Reductions” for FY 2010 included a “County OverCommitment” budget reduction plan through which Defendants expected to save $7.5 million by reducing the number of children committed to DCS custody.
55. DCS developed and proposed legisla tion designed to achieve these budget reductions and reduce the number of children entering DCS custody by causing judges to commit fewer children.
56. On or about March 31, 2009, Tenness ee State Representative Craig Fitzhugh introduced House Bill 2389 (“H.B. 2389”) in the Gene ral Assembly of the State o f Tennessee.
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Also on or about March 31, 2009, Tennessee S tate Senator James Kyle introduced Senate Bill
2357 (“S.B. 2357”) in the State Senate. H.B. 2389 and S.B. 2357 were omnibus budget bills. A
section in each bill prop osed that DCS should b ill the counties for each child comm itted to state
custody as dependent and neglected, or delinquent, in excess of 200% of the statewide average
commitment rate.
57. In testimony before the Tennessee Hous e Finance, Ways and Means Committee
on March 31, 2009, DCS Commissioner Viola Miller stated that, if H.B. 2389 were to be enacted
and implemented, the countie s exceeding their defined c ommitment rates would be billed,
collectively, a total of $7.5 million. Commissioner Miller stated:
The way we track comm itment rates in Te nnessee and most states is the num ber of children per thousand that come into the custody of the state. In Tennessee we have an average and most states, I m ean, most counties rock right around that average of somewhere between three and four kids per thou sand, we have a few counties in this state that commit at 16, 20 per thousand. That is significant overcommitment of children. Children are coming into state custody who should not. Now, we have been addressing this problem aggressively and we’ve made a lot of progress, and as I said, I want to work with those counties in m aking sure those kids can stay safely in their home. I don’t ever want to collect a nickel of that 7.5 million dollars, I want to reduce that commitment level.
58. On May 12, 2009, at a hearing of the Ta x Study Subcommittee of the Finance,
Ways and Means Committee of the Tennessee Senate, Senator Kyle said of the provision in S.B.
2357 that dealt with the commitment of children to DCS custody:
[T]he policy consideration for this particul ar matter is to s omewhat [] have ou r local governments be a little m ore judicious as to who they comm it to state custody . . . . It m akes people m ore responsible for their decisions, and when you’re more responsible for your decisions you’re going to be m ore careful with your decisions.
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59. The May 15, 2009 newsletter of the Te nnessee County Services Association, a
nonpartisan, nonprofit public intere st group representing the stat e’s 95 counties, included the
following commentary – which was approved by DCS - on the bills as then proposed:
The Senate Finance Tax Subcommittee this week heard an am endment to the socalled “omnibus budget bill.” . . . Outlin ed in the amendment this week to Senate Finance Tax Subcomm ittee, SB2357/BH2389 would have a m ajor fiscal im pact on counties. The following are some of the parts of this amended bill.
1) Over-committing children to state custody by the juvenile court judge (or General Sessions judge where applicable). As am ended, the bill autho rizes the state to recoup costs from counties that are ov er-committing children to state custody at a level that exceeds 200 percent of the state average. For instance, th e state average is 3.6 per 1,000 for children committed in the Dependent & Neglect and Unruly category. Anderson County’s comm itment rate is 17 per 1,000, som e four times more than the state average.
For children committed to state custody for Dependent & Neglect and Unruly, local governments under this amendment will pay the state portion . . . (49 percent of $106 per day per child) resulting in an increase in local e xpenditures of about $5.25 million. The state is prepared and has budgeted to receive as many as 5,798 total children statewide through commitments from county judges. . . .
. . . If counties were req uired today to pay f or children committed over the sta te average of 200 percen t, the to tal cost would be m ore than $7.5 m illion paid primarily by a few c ounties who are having a high frequency of overcommitments. . . .
The public policy implication is that in some cases juvenile judges are over-using their commitment authority and, thus, not offering alternatives to the fam ily nor the child.
* **
In summary . . . what can you do as a coun ty official about this potential fiscal liability? First of all, counties will not be charged anything if your juvenile judge makes no commitments above the statewide average, or cap. . . . . [A]bout four judges appear to be making the most over-commitments. I would make sure my county juvenile judge know s this DCS cap number and uses other alternatives in dealing with the child. Otherwise, your county will be bill [sic] for these overcommitments in the future. This could be addressed with the juvenile judge in the county budget process.
(emphasis in original).
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60. On May 28, 2009, at a hearing of the Le gislative Committee of the Anderson
County Board of Comm issioners on the possible effects of S.B. 2357, DCS Budget Director
Douglas Swisher testified:
The Department was charged by the governor to come up with reduction plans. . . . We were required to reduce our budget, okay? Obviously I had to come up with ways to reduce our budget, okay? Obviously those are all painful, they were not easy . . . . Actually, this one reduction actually is the only one in our Department that actually is good for ki ds. Now, you as a county m ay say, well, no, this is affecting your county budget. Our goal with this is that we as a Department don’t collect a dime from the county. And that would be what was in the best interest of kids. . . . It’s about . . . leaving [kids] with their families.
61. Defendants’ intent to pressure certain judges in what DCS pe rceived to be high-
commitment counties is illus trated by an email dated June 2, 2009, from Aaron Campbell, DCS
Legislative Director, to DCS Commissioner Miller, in which Campbell wrote:
Anderson county [sic] clearly understands that they have a huge problem on their hands-their judge. . . . We have the s upport of their county comm ission to work with the judge to bring down unneeded commitments.
62. On or about June 25, 2009, Governor Br edesen signed S.B. 2357, as am ended,
into law as Tennessee Public Chapter No. 531, which becam e effective as of July 7, 2009.
Section 30 of Public Chapter No. 531 am ended T.C.A. § 37-2-205 by adding a new subsection
“f.”
63. T.C.A. § 37-2-205(f) states, in full:
(f)(1)(A) Notwithstanding any state law to the contrary, the Department of Children’s Services shall allocate resources for children p laced in state custody based on a county’s child population and the average state commitment rate per thousand child ren. In fiscal years 2009-2010 and 2010-2011 the department shall pay for a c ounty’s commitments of dependent and neglected children a nd delinquent children until suc h
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commitments exceed three hundred per cent (300%) of the state averag e commitment rate.
(B) When a county exceeds the lim it on either dependent and neglected children or delinquent children estab lished in subdivision (f)(1)(A), the county shall be billed for the actual daily cos t to the state for the duratio n of the length of stay of such child in state custody.
(C) The department shall develop statewide averages for:
(i) Dependent and neglected children; and
(ii) Delinquent children.
(D) The average state commitment rate shall be based on the higher of:
(i) 2007-2008 fiscal year statew ide average comm itments per thousand children; or
(ii) 2008-2009 fiscal year statew ide average comm itments per thousand children.
(2) The d epartment shall in itiate a co llaborative planning process at any such time a county is believed to be likely to exceed two hundred percent (200%) of the state average comm itment rate. Upon request of the county or the court, the departm ent shall pa rtner with the count y or the court to develop and im plement strategies to identify and address underlying problems contributing to over-commitm ent that may exist in such county. The department shall provide comm itment data to the cou nty or the c ourt as needed to prevent a county from exceedin g the lim its established in subdivision (f)(1)(A).
(3) On or before January 15 of eac h year, the department shall provide a report to the general assembly listing the counties that have exceeded the state average commitment limits. The report shall also detail actions taken by the department to comply with subdivision (f)(2).
(4) The Select Comm ittee on Children and Youth is directed to study commitment patterns of children ente ring state custody. Findings shall be provided to the Comm issioner of the Department of Children’s Services and to the members of the Select Committee on Children and Youth on or before January 15, 2010.
(5)(A) The Commissioner of the Department of Children’s Services is authorized to promulgate rules and regulations to effectuate the provisions of this subsection (f).
(B) The provisions of subsection (f ) shall expire June 30, 2011, unless reauthorized by the general assembly. 64. T.C.A. § 37-2-205(f), the Over-Comm itment Law, thus establishes a m aximum
pre-set number of children in DC S custody for whom Defendants will provide resources. Past
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that number, the state will not allo cate resources or funding, regard less of how many child ren actually enter DCS custody and require services.
65. The Over-Commitment Law was signed into law by Governor Bredesen, on behalf of the executive branch of the state’s governm ent, with the intent to save state funds by influencing Juvenile Court judges to commit fewer children to DCS custody.
66. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Commit ment Law fail to take into acco unt the fact that nearly all comm itments to DCS custody as dependent/neglected are the result of petitions that DCS itself files, seeki ng such custody. D CS thus counts against judges, and against the counties in which they sit, commitments which DCS itself asks the judges to order.
67. The concept of “over-comm itment” is entirely irrational because DCS can challenge any comm itments it believ es to be im proper by seeking a de novo appeal of tho se decisions. The Over-C ommitment Law is in tended to reduce the nu mber of purportedly “excessive” commitments, yet DCS rarely pursu es the appeal remedy already available to it to reduce these purportedly “excessive” commitments.
68. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Commi tment Law di minish the significance of the individual factors of any one child’s case.
69. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Commitment Law fail to take into account the factors contributing to comm itment numbers and rate s in any given county or community. These
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include socio-economic factors su ch as poverty and abuse rates, and the prevalen ce of certain drug problems such as methamphetamine production and use, which in som e counties contribute to higher commitment rates.
70. The statewide average comm itment rate and the pre-set commitment limits established for each cou nty under the Over-Commitment Law fail to take into accou nt the great disparities among counties in the pr ovision by DCS of services desi gned to keep children safe in their homes, and to avoid removal and placement into custody.
71. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Com mitment Law are based so lely on the number of commitments, without regard to whether the child ren remain in custody for one day or several years. The pre-se t limits fail to take into account the fact that a county with a low c ommitment rate but longer average length of stay requires m ore state f unds than a county with a high commitment rate but shorter average length of stay.
72. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Commit ment Law fail to take into acco unt the fact that, in ru ral counties with sm all populations of children, a ve ry small num ber of additional commitments can make a drastic change in thei r commitment rates and expose them to severe financial liability under the law.
73. The statewide average comm itment rate and the pre-set commitment limits established for each county under the Over-Commit ment Law fail to take into acco unt the fact that, at the tim e of its passage, m ost counties’ FY 2010 budgets had alr eady been finalized and
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no money had been allocated for the daily cost of care of any committed children over the pre-set limits.
74. The statewide average comm itment rate and the pre-set commitment limits established for each co unty under the Over-Comm itment Law fail to take into account the counties’ varying abilities or inabilities to pay the state’s entire share of the daily cost of foster care for any “excess” children. Under the Over-commitment Law, DCS “shall allocate resources for children placed in state custody based on a county’s child population and the average state commitment rate per thousand children.” If m ore children are abused and neglected beyond this pre-set limit and require comm itment to DCS custody, Defendant s have no responsibility under the Over-Commitment Law to provide resources for those children.
ADDITIONAL PROCEDURAL HISTORY
75. On September 9, 2009, Plaintiffs brought a Motion for a Temporary Restraining Order or, in the Alternative, a Preliminary Injunction (Docket No. 296) (“Plaintiffs’ Motion for a Preliminary Injunction”) seeking to enjoin th e Over-Commitment Law and enforce the Consent Decree.
76. On October 15, 2009, following expedited di scovery and a hearing, this Court denied Plaintiffs’ Motion for a Prelim inary Injunction. (See Docket No. 330). The Court found that Plaintiffs had “raised substantial lega l claims” about the Over-Comm itment Law, but because the Court found them to be “new clai ms” for purposes of Article III standing, th e original Named Plaintiffs in this action had no personal stake in challenging the OverCommitment Law. The Court therefore deni ed the Plaintiffs’ Motion for a Tem porary Restraining Order, or, in the Alternative, a Preliminary Injunction for lack of standing.
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IMMINENT RISK OF HARM TO SUPPLEMENTAL PLAINTIFFS AND SIMILARLY SITUATED CLASS MEMBERS
77. Because of the intended , inevitable a nd actual effect of the Over-Comm itment Law on the decision-m aking of Juvenile Court judges, Supplemental Plaintiffs and all sim ilarly situated class members are at risk of the depriv ation of their constitutional rights in Juvenile Court proceedings, including the right to a fair h earing and to equal protection under the law. Thus, the Over-Commitment Law places Supplemental Plaintiffs and all sim ilarly situated class members at imminent risk of harm.
78. The intended, inev itable and actual effect of the Over-Co mmitment Law is to force Juvenile Court judges to take an indirect pecuniary interest in their commitment decisions, based on the judges’ total comm itments, the costs to their counties, and th e counties’ ability or inability to pay the s tate’s total cost of foster care for child ren committed beyond their counties’ pre-set limits.
79. For example, the Judge of the Juvenile Court of Anderson County testified in a sworn videotaped deposition, taken on Septem ber 29, 2009 in this action, that she takes the Over-Commitment Law and its impact on the children of her county “into account every day.”
80. The Over-Commitment Law thus biases judges against co mmitting children to DCS custody because of factors entirely outside th e facts of individu al children’s cases, placing the Supplemental Plaintiffs and all similarly situated class members at imminent risk of harm.
81. The intended, inev itable and actual effect of the Over-Co mmitment Law is to cause similarly situated children who are the subject of commitment decisions to be categorized and treated differently from one another without justification, based on factors having nothing to
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do with their individual cases, th ereby placing the Supplem ental Plaintiffs and all sim ilarly
situated class members at imminent risk of harm. For example:
a. Within a given county, a child whose comm itment hearing occurs early in the fiscal year, when the county is s till comfortably below its pre-s et limit on commitments, will be tr eated differently from a child wh ose commitment hearing occurs later in the fiscal year, if by then the county is near or over its pre-set limit. This is esp ecially true in the “highcommitment” counties which histo rically have exceeded 200% of th e statewide average commitment rate as set by the Over-Commitment Law.
b. A child who lives in a c ounty that remains comfortably below its pre-set limit on commitments will be treated differently from a child who lives in a county that expects to approach or exceed its pre-set limit, such as those which historically have exceeded 200% of the statewide average commitment rate as set by the Over-Commitment Law.
c. A child who lives in a county with a sm all population of children – and whose commitment, if ordered, could dr astically affect her county’s rate – will be treated differently from a child who lives in a coun ty with a larg e population of children, whose comm itment if ordered would not have an appreciable effect on his county’s commitment total.
82. The Over-Commitment Law has already ha d the actual result – as intended and
inevitable – of causing the differential treatm ent of children in Anderson County, one of the
historically “high-commitment” counties targeted by the Over-Commitment Law. In h er
deposition on September 29, 2009, the Judge of the Juvenile Court of that county described:
a. situations in which children are “sitting in a courtroom or a police officer’s office,” or “in a conference room at DCS,” or are “s leeping on the pews” in her courtroom , “waiting out th e Department to look for [a noncustodial] option,” whereas before th e passage of the Over-Commitment Law she would have “signed a bench or der that placed that child in to custody [and] they at least would have been sleeping on someone’s sofa in a foster home.”
b. allowing “detention-eligible” children “to spend the night in detention,” whereas before the passage of the Over-Commitment Law she would have committed those children to DCS cu stody “for that one nigh t until [DCS] found . . . an Aunt Bessie somewhere.”
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c. her reluctance to accept jurisdiction in Anderson County over cases that

originate in other counties, wherea s before the passage of the Over-

Commitment Law she would have

accepted jurisdiction (where

appropriate) for “the convenience of the parties and perhaps even the

witnesses.”

d. accepting DCS’s proffered “opti on” of “tenuous” non-custod ial placements, whereas before the passage of the Over-Commitment Law she would have committed the same children to DCS custody in stead. Some of these alternative p lacements later failed, to the detrim ent of the children, who were subjected to additional placements.

83. Under the Over-Commitment Law, children committed to DCS custody after their counties’ pre-set limits are exceeded lose their rights under § I(A)(1 3) of the Consent Decree to the provision by Defendants of the resources re quired for the im plementation of all Consent Decree obligations. Furtherm ore, the Over-Commitment Law denies resources and funding for the care of som e children in DCS custody but not others without justif ication, thereby placing some class members at imminent risk of harm, but not others.

NO HARM TO DEFENDANTS BY A GRANT OF INJUNCTIVE RELIEF

84. The only harm that the state will suf fer if the Over-Commitment Law is enjoined is the “harm” of having to fund the care of all children who are brought into DCS custody. Thus, an injunction will only require the state to continue doing what it is required now to do under the plain terms of the Consent Decree. This cannot be characterized as a harm.

85. relief.

There are no relevant third parties that would be harmed by the grant of injunctive

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THE PUBLIC INTEREST WILL BE SERVED BY A GRANT OF INJUNCTIVE RELIEF
86. The vigorous enforcem ent of consent decrees is in the public interest. Additionally, the public inte rest is clearly se rved in ensuring that children receive case-by-case evaluations of their safety and other circum stances when critical decisions are m ade regarding their commitment to DCS custody. Finally, the public interest is served by preventing the enforcement of laws which are unconstitutional.
CAUSES OF ACTION
First Cause of Action (Contempt of § I(A)(2) of the Consent Decree)
87. Each and every allegation in this Supplemental Complaint is incorporated herein as if fully set forth.
88. The Over-Commitment Law, on its face and as applied, v iolates the rights of Supplemental Plaintiffs and all other sim ilarly situated class m embers under § I(A)(2) of the Consent Decree, and thus places Defendants in contempt of § I(A)(2) of the Consent Decree.
89. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
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Second Cause of Action (Contempt of § I(A)(12) of the Consent Decree)
90. Each and every allegation in this Supplemental Complaint is incorporated herein as if fully set forth.
91. The Over-Commitment Law, on its face and as applied, v iolates the rights of Supplemental Plaintiffs and all other similarly situated class members under § I(A )(12) of the Consent Decree, and thus places Defendants in contempt of § I(A)(12) of the Consent Decree.
92. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Third Cause of Action (Contempt of § I(A)(13) of the Consent Decree)
93. Each and every allegation in this Supplemental Complaint is incorporated herein as if fully set forth.
94. The Over-Commitment Law, on its face and as applied, v iolates the rights of Supplemental Plaintiffs and all other similarly situated class members under § I(A )(13) of the Consent Decree, and thus places Defendants in contempt of § I(A)(13) of the Consent Decree.
95. Because the Over-Commitment Law, as developed and im plemented by Defendants in contravention of the Consent Decree, has caused and is likely to continue to cause
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an immediate and substantial risk of serious harm to children in the class, P laintiffs seek immediate relief from this Court pursuant to § XVIII(B)(2)(c) of the Consent Decree.
Fourth Cause of Action (Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution)
96. Each and every allegation in this Supplemental Complaint is incorporated herein as if fully set forth.
97. The Over-Commitment Law, on its face and as applied, v iolates the rights of Supplemental Plaintiffs and all other sim ilarly situated class members to the equal protection of the laws under the Fourteen th Amendment to the United States Constitu tion. The OverCommitment Law creates clas sifications among sim ilarly situated children subject to commitment decisions and treats them differently without legally sufficient justification.
Fifth Cause of Action (Due Process under the Fourteenth Amendment
to the United States Constitution)
98. Each and every allegation in this Supplemental Complaint is incorporated herein as if fully set forth.
99. The Over-Commitment Law, on its face and as applied, v iolates the rights of Supplemental Plaintiffs and all other sim ilarly situated class m embers awaiting judicial commitment decisions to a fair hearing and to due process under the Fourteenth Amendm ent to the United States Constitution.
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PRAYER FOR RELIEF
100. WHEREFORE, Plaintiffs respectfully request that this Honorable Court, pursuant to its powers under Rule 57 of the Federal Ru les of Civil Procedur e and its continuing jurisdiction of this matter under the Consent Decree,
a. Declare that: i. The Over-Commitment Law, on its face and as applied, v iolates §§ I(A)(2), I(A)(12), and I(A)(13) of the Consent Decree, and places Defendants in contempt of the Consent Decree; ii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Equa l Protection Clause of the Fourteenth Amendment to the United States Constitution;
iii. The Over-Commitment Law, on its face and as applied, v iolates Plaintiffs’ rights under the Due Pro cess Clause of the Four teenth Amendment to the United States Constitution;
b. Preliminarily and permanently en join the im plementation of the OverCommitment Law, T.C.A. § 37-2-205(f);
c. Award to Supplem ental Plaintiff children the reas onable costs and expenses incurred in th e prosecution of this action, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920, and Federal Rules of Civil Procedure 23(e) and (h); and
d. Grant such other and further equitabl e relief as the Court deem s just, necessary and proper to protect Pl aintiffs from further harm by Defendants.
DATED: November 9, 2009
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Respectf

ully Submitted,

ATTORNEYS FOR PLAINTIFFS:

/s/ Marcia Robinson Lowry MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) YASMIN GREWAL-KOK (pro hac vice) PATRICK S. ALMONRODE (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Fl. New York, NY 10001 (212) 683-2210

/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) JACQUELINE B. DIXON (TN BPR #012054) HOLLINS, WAGSTER,
WEATHERLY & RAYBIN, P.C. SunTrust Center, 22nd Floor 424 Church Street Nashville, TN 37219 (615) 256-6666

RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Avenue Memphis, TN 38105 (901) 543-4299

JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC One Commerce Square, Suite 1700 Memphis, TN 38103 (901) 525-1322

WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661

32 33
Case 3:00-cv-00445 Document 344 Filed 12/04/09 Page 32 of 32 PageID #: 6749

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

____________________________________

BRIAN A., ET AL.

)

)

Plaintiffs

)

Civ. Act. No. 3:00-0445

)

Judge Todd Campbell

v.

)

)

PHIL BREDESEN, ET AL.

)

)

Defendants

)

____________________________________)

STIPULATED MODIFICATIONS TO THE SETTLEMENT AGREEMENT AND REQUEST FOR COURT APPROVAL OF THE JANUARY 2009 MODIFIED SETTLEMENT AGREEMENT

I. OVERVIEW OF STIPULATED MODIFICATIONS This case was settled by a Settlement Agreement approved by the Court on July
27, 2001 (the “Settlem ent Agreement”). Sectio n XVI of the Settlem ent Agreement set forth a number of “Outcom e and Performance Measures” that Defendants were required to achieve for three different 18-month pe riods, defined as Periods I, II and III. See Settlement Agreement § XVI.
On November 20, 2003, Plaintiffs filed a m otion seeking to hold Defendants in contempt of court for fa iling to implement the terms of the Settlement Agreement. By “Stipulation of Settlement” approved by the C ourt on Decem ber 29, 2003, the parties resolved the contempt motion. (See Stipulation of Settlement of Contempt Motion, Dec. 29, 2003 (attached as Exhibit A )). The Stipulation of Se ttlement extended Period II under the Settlem ent Agreement by 15 m onths and red efined Period III to be th e 18-

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month period beginning December 1, 2005, an d ending May 31, 2007 . (See id. at 11). The Stipulation of Settlement also provided that, f or a def ined term, the Brian A. technical assistance committee (the “TAC”) “will function as the ind ependent monitor” for purposes of Section XV of the Settlement Agreement. (See id. at 9).
By “Stipulation Extending Monitoring,” entered by the Court on February 28, 2006, it was agreed and ordered, in pertinent part, th at “[t]he TAC shall continue in the role of independent monitor, as defined in Section XV of the Settlement Agreement, at least for th e duration of Period III (as redefined in the Stipulation of Settlement, December 1, 2005 – May 31, 2007) plus an ad ditional three months (the ‘Continuation Period’).” (Stipulation Extending Monitori ng at 3, Feb. 28, 2006 (attached as Exhibit B)).
By “Stipulated Modifications to the Se ttlement Agreement and Request for Court Approval of Modified Settlem ent Agreement,” filed with th e Court on May 8, 2007 (“Stipulated Modifications of 2007”), Period III was extended by a period of 13 m onths, such that Period III began on Dec ember 1, 2005, and ended on June 30, 2008. ( See Stipulated Modifications of 2007 at 2, May 8, 2007 (attached as Exhibit C)). It was agreed and ordered, in pertinent part, that the TAC contin ue in its role as independent monitor at least f or the duration of the redef ined Period II I, plus an addition al three month Continuation Period. (See id. at 3). The TAC was to report on performance under the entire Settlement Agreement during and after the end of the redefined Period III. (See id.).
By “Stipulated Modifications to the Se ttlement Agreement and Request for Court Approval of the 2008 Modified Settlem ent Agreement,” entered by the Court on October
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1, 2008 (“Stipulated Modificat ions of 2008”), a Period IV was created under the
Settlement Agreement, which began on July 1, 2008, and shall end on Decem ber 31,
2009 (See Stipulated Modifications of 2008 at 3, October 1, 2008 (attached as Exhibit
D)). It was agreed and ordered, in pertinent part, that the TAC shall c ontinue in its role
as independent monitor for at least for the duration of the Period IV, plus an additional
six-month Continuation Period. ( See id.). The TAC shall report on perfor mance under
the entire Settlement Agreement during and after the end of the Period IV. ( See id. at 4).
The Settlement Agreement shall rem ain in full force and effect u ntil at least th e
conclusion of Period IV. (See id. at 4).
The parties agreed to separately presen t the Period IV outcom e and performance
measures to the Court fo r review and requested approval. ( See id. at 3 n.1) Pursuant to
Section XVII of the Settlement Agreement providing for modification “on the consent of
the parties,” the parties now stipulate and ag ree to, and request Court approval of, certain
modification to Sections VI, XII and XVI of the Settlement Agreement, which will best further the purposes of the Settlement Agreement.1
II. STIPULATION MODIFYING SUBST ANTIVE PROVISIONS OF THE 2008 MODIFIED SETTLEMENT AGREEMENT
Pursuant to Section XVII of the Settlem ent Agreement, the p arties agree to modify the Settlement Agreement, and request Court approval, as follows: 2
1 After extensive discussions concerning the Period IV outcom e and perform ance measures, the parties have not yet been able to agree upon the addition or term s of Period IV measures for adoptive placement disruption (§XVI.A.6) and placement in an adoptive home (§ XVI.B.5). The parties have agreed to further discuss and attempt to agree upon modifications for a period of 120 days. 2 Enclosed as Exhibit E (“January 2009 Red-Lined Modified Settlement Agreement”) is a red-lined version of t he Settlement Agreement, which pres ents the p roposed modifications set forth h erein. Enclosed as Exhibit F is a final “cl ean” version of the
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1. Delete the text of Section VI.C.7 of the Settlem ent Agreement in its
entirety and replace it with the following language:
No child shall be placed in a foster home if that placem ent will result in more than three f oster children in th at foster hom e, or a total of six children, including the foster family’s natural and/or adopted children. No placement will result in more than 3 children under the age of 3 residing in a foster home. An exception in the best interests of the child shall apply under which the regional adm inistrator will be allowed to m ake an exception on an individual basis that is documented in the child’s case file. Such exception shall not be m ade in more than 10% of all placem ents made annually in each grand regio n. All su ch exceptions in each grand region and the detailed reasons jus tifying each exception shall be reported by the regional administrator to the Monitor annually, from the date of this Settlement Agreement. The only other exception to these limits shall be in those instances in which the placement of a sibling group in a foster hom e with no other children in the home would exceed these limits.
(See Exh. E at Section V I.C.7, p. 15; Exh. F at Section VI.C.7, p. 15). The parties agree
that the designation of regional ad ministrator is adequate to further the principles of this
provision.
2. Delete the text of Section XII.D of the Settlem ent Agreement in its
entirety and replace it with the following language:
Alleged abuse or neglect of children placed with a contract agency m ust be reported by the agency to the DCS central intake unit. Additiona lly, alleged abuse or neglect con cerning children placed with any con tract agency shall be reported to the cen tral office resource m anagement unit and the quality assurance unit. DCS shall inco rporate these reports, and their findings, into the annual review of each contract agen cy. DCS will evaluate carefully those reports and consider prior corrective actions, the history of the agency and determ ine if there are serious problem s that place children at seriou s risk of harm and prevent further contracts fro m being issued.
2009 Modified Settlement Agreement (“January 2009 Modified Settlement Agreement”), which incorporates all prior m odifications to the Settlement Agreement approved by the Court and the proposed modifications set forth herein. For ease of reference, citations are provided to both the Januar y 2009 Red-Lined Modified Se ttlement Agreement and the January 2009 Modified Settlement Agreement for all language discussed herein.
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(See Exh. E at Section XII.D, p. 36; Exh. F at Section XII.D, p. 36). The parties agree
that the central intake unit now conducts the activities pertinent to this provision.
3. Add the following language to th e end of Section XVI.A.1 of the
Settlement Agreement:
Period IV
At least 80% of children entering care after Septem ber 1, 2001, who are reunified with their parents or careta kers at the tim e of di scharge from custody, shall be reunified within 12 months of the latest removal date.
Of the remaining ch ildren (i.e. those who are not reunified with their parents or caretakers at the tim e of discharge from custody within 12 months of t he latest removal date), 75 % shall be reunified within 24 months of the latest removal date.
(See Exh. E at Section XVI.A.1, p. 41; Exh. F at Section XVI.A.1, p. 41).
4. Add the following language to th e end of Section XVI.A.2 of the
Settlement Agreement:
Period IV
For children whose parental rights have been terminated or surrendered during the period from January 1, 2008 through and including December 31, 2008 (i.e., those who entered full guardianship), 75% shal l have their adoption finalized or permanent guardianship transferred w ithin 12 m onths of being in full guardianship.
(See Exh. E at Section XVI.A.2, p. 42; Exh. F at Section XVI.A.2, p. 42).
5. Add the following language to th e end of Section XVI.A.3 of the
Settlement Agreement:
Period IV
At least 90% of children in care at any tim e during the reporting period shall have had two or fewer placem ents within the previous 12 m onths in custody, not including tem porary breaks in placem ent for children who run away or require emergency hospitalization not exceeding 30 days.
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At least 85% of children in care at any tim e during the reporting period shall have had two or fewer placem ents within the previous 24 m onths in custody, not including tem porary breaks in placem ent for children who run away or require emergency hospitalization not exceeding 30 days.
(See Exh. E at Section XVI.A.3, p. 43; Exh. F at Section XVI.A.3, p. 43).
6. Add the following language to th e end of Section XVI.A.4 of the
Settlement Agreement:
Period IV
This measure shall include all children who entered care after October 1, 1998 and either left care at any time during the reporting period or are still in care at the end of the repo rting period. M easurement shall exclud e children still in care at the end o f the reporting period who have a permanency goal of Planned Permanent Living Arrangement.
At least 75% of the children in placement shall have been in placement for two years or less.
No more than 20% of the children in placement shall have been in placement for between 2 and 3 years.
No more than 5% of the ch ildren in placement shall have been in placement for more than 3 years.
(See Exh. E at Section XVI.A.4, p. 44; Exh. F at Section XVI.A.4, p. 44).
7. Add the following language to th e end of Section XVI.A.5 of the
Settlement Agreement:
Period IV
Measures in this section apply to children who are discharged from foster care at any tim e during the calendar year 2008 (January 1, 2008 through and including December 31, 200 8). For each child, reentry shall be determined from the date of discharge for a period of 12 months.
No more than 5% of children who are dis charged from foster care at an y time during calendar year 2008 shall reenter custody within 12 m onths after the discharge date from the prior custody episode.
(See Exh. E at Section XVI.A.5, p. 45; Exh. F at Section XVI.A.5, p. 45).
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8. Add the following language to th e end of Section XVI.A.7 of the
Settlement Agreement:
Period IV
At least 90% of the children who are discharged from foster care during the reporting period because they reached the age of 18 shall have at leas t one of the following apply at the tim e of di scharge: earned a GED, graduated from high school, enrolled in high school or college or alternative approved educational pr ogram for special needs child ren, currently enrolled in vocational training, or employed full time.
(See Exh. E at Section XVI.A.7, p. 46; Exh. F at Section XVI.A.7, p. 47).
9. Add the following language to th e end of S ection XVI.B.1.b of the
Settlement Agreement:
Period IV
50% of all class m embers with a g oal of reunification shall be visited at least twice per month.
For the remaining class m embers with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month.
(See Exh. E at Section XVI.B.1.b, p. 48; Exh. F at Section XVI.B.1.b, p. 48).
10. Add the following language to th e end of S ection XVI.B.2.b of the
Settlement Agreement:
Period IV
90% of all child ren in the class in placement who have siblings with whom they are not living shall visit with those siblings at leas t once a month.
Of the remaining children in the class in placement who have siblings with whom they are not liv ing and with whom they did not visit at least once a month, at least 90% shall visit at least once every two months.
(See Exh. E at Section XVI.B.2.b, p. 49; Exh. F at Section XVI.B.2.b, p. 49-50).
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11. Add the following language to th e end of S ection XVI.B.3.b of the
Settlement Agreement:
Period IV
At least 85% of all s iblings who entered placem ent during the reporting period shall be placed together in the sam e foster hom e or other placement.
(See Exh. E at Section XVI.B.3.b, p. 50; Exh. F at Section XVI.B.3.b, p. 50).
12. Add the following language to th e end of S ection XVI.B.4.b of the
Settlement Agreement:
Period IV
At least 65 % of children in the class with a sole perm anency goal of adoption during the reporting period shall have a petition to term inate parental rights filed within 3 m onths of when goal was changed to adoption.
Of the remaining ch ildren in the c lass with a sole perm anency goal o f adoption during the repor ting period who did not have a petition to terminate parental rights filed within 3 months, at least 75% shall have a petition for term ination of parental ri ghts filed within 6 m onths of when the goal was changed to adoption.
(See Exh. E at Section XVI.B.4.b, p. 51-52; Exh. F at Section XVI.B.4.b, p. 52).
13. Delete the text of Section XVI.B.6 of the Settlem ent Agreement in its
entirety and replace it with the following language:
6. Goal of permanent or long term foster care or Planned Perm anent Living Arrangement
a. The standard:
No child shall be assigned a permanency goal of permanent foster care unless a) th e child is at l east 15 yea rs old; b) DCS has made every reasonable effort, documented in the record, to return th e child home, to place the child with appropriate family members or to place th e child for adoption; and c) the person to whom DCS proposes to
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assign permanent caretaker statu s has demonstrated a commitment to assum ing long-term responsibility for the child.

b. Measurement period/ compliance levels

Period I

No more than 10% of children in the pla intiff class sha ll have a goal of permanent or long term foster care.

Period II

No more than 8% of children in the plain tiff class sh all have a goal of permanent or long term foster care.

Period

III

No more that 5% of children in the plaintiff class shall have a goal of permanent or long-term foster care.

Period IV

No child shall be assig ned a permanency goal of Planned Permanent Living Arrangem ent except as pursuant to the TAC’s 2007 recommendations on the use of this goal.

No more that 5% of children in the plaintiff class shall have a goal of Planned Permanency Living Arrangement.

(See Exh. E at Section XVI.B.6, p. 53-54; Exh. F at Section XVI.B.6, p. 53-54).

14. Add the following language to th e end of S ection XVI.B.7.b of the

Settlement Agreement:

Period IV

At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.

(See Exh. E at Section XVI.B.7.b, p. 54-55; Exh. F at Section XVI.B.7.b, p. 55).

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15. The proposed modifications outlined above will best further the purposes of the Settlement Agreement.
16. The January 2009 Modified Settlem ent Agreement, attached as Exhibit F hereto, replaces and supersedes the 2008 Sett lement Agreement entered by the Court on October 1, 2008. Other th an as set forth herein, previous stipulations and orders in this action shall remain in full force and effect.

Dated: January __, 2009

SO ORDERED:

_____________________________________________________

HONORABLE TODD J. CAMPBELL, U.S.D.J.

DATE

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
_/s/ Marcia Robinson Lowry_______________ MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
_/s/ David L. Raybin____________________ DAVID L. RAYBIN (TN BPR #003385) JACQUELINE B. DIXON (TN BPR #012054) HOLLINS, WAGSTER, WEATHERLY & RAYBIN, P.C. 22nd Floor Sun Trust Center 424 Church Street Nashville, Tennessee 37219 (615) 256-6666

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OF COUNSEL FOR PLAINTIFFS: RICHARD B. FIELDS (TN BPR #4744) 688 Jefferson Memphis, TN 38105 (901) 578-7709 JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322 WADE V. DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
_/s/ Elizabeth C. Driver ________________ DOUGLAS E. DIMOND (TN BPR #017953) ELIZABETH C. DRIVER (TN BPR #019363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., ET AL. Plaintiffs
v.
PHIL BREDESEN, ET AL. Defendants

)

)

)

Civ. Act. No. 3:00-0445

)

Judge Todd Campbell

)

)

)

)

)

STIPULATED MODIFICATIONS TO THE SETTLEMENT AGREEMENT AND REQUEST FOR COURT APPROVAL OF THE 2008 MODIFIED SETTLEMENT
AGREEMENT
I. STIPULATED MODIFICATIONS A. STIPULATION EXTENDING MONITORING AND CREATING PERIOD IV This case was settled by a Settlement Agreement approved by the Court on July 27, 2001
(the "Settlement Agreement"). Section XVI of the Settlement Agreement set forth a number of "Outcome and Performance Measures" that Defendants were required to achieve for three different 18-month periods, defined as Periods I, II and III. See Settlement Agreement § XVI.
On November 20, 2003, Plaintiffs filed a motion seeking to hold Defendants in contempt of court for failing to implement the terms of the Settlement Agreement. By "Stipulation of Settlement" approved by the Court on December 29, 2003, the parties resolved the contempt motion. (See Stipulation of Settlement of Contempt Motion, Dec. 29, 2003 (attached as Exhibit A». The Stipulation of Settlement extended Period II under the Settlement Agreement by 15

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months and redefined Period III to be the I8-month period beginning December 1, 2005, and ending May 31, 2007. (See id. at 11). The Stipulation of Settlement also provided that, for a defined term, the Brian A. technical assistance committee (the "TAC") "will function as the independent monitor" for purposes of Section XV of the Settlement Agreement. (See id. at 9).
By "Stipulation Extending Monitoring," entered by the Court on February 28, 2006, it was agreed and ordered, in pertinent part, that "[t]he TAC shall continue in the role of independent monitor, as defined in Section XV of the Settlement Agreement, at least for the duration of Period III (as redefined in the Stipulation of Settlement, December 1, 2005 - May 31, 2007) plus an additional three months (the 'Continuation Period')." (Stipulation Extending Monitoring at 3, Feb. 28, 2006 (attached as Exhibit B».
By "Stipulated Modifications to the Settlement Agreement and Request for Court Approval of Modified Settlement Agreement," entered by the Court on May 9, 2007 ("Stipulated Modifications of 2007"), Period III was extended by a period of 13 months, such that Period III began on December 1,2005 and ended on June 30, 2008. (See Stipulated Modifications of 2007 at 2, May 9, 2007 (attached as Exhibit C». It was agreed and ordered, in pertinent part, that the TAC continued in its role as independent monitor at least for the duration of the redefined Period III, plus an additional three month Continuation Period. (See id. at 3). The TAC was to report on performance under the entire Settlement Agreement during and after the end of the redefined Period III. (See id.).
The Stipulated Modifications of 2007 further required that, prior to the conclusion of the Continuation Period, i.e., September 30, 2008, the parties, in consultation with the TAC, would determine whether it was advisable for the TAC to continue in the role of independent monitor following the expiration of the Continuation Period or whether a separate independent monitor
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should be retained to fulfill the responsibilities described in Section XV of the Settlement

Agreement. (See id.). The parties and the TAC have met numerous times and have discussed

extensively the options for continuation of monitoring and the creation of a "Period IV" under the Settlement Agreement. l

Pursuant to Section XVII of the Settlement Agreement providing for modification "on the

consent of the parties," the parties now stipulate and agree, and request Court approval, as follows: 2

1.

A Period IV shall be created under the Settlement Agreement, which

began on July 1, 2008 and shall end on December 31, 2009. (See Exh. D at § XVI, p. 40; Exh. E

at § XVI, p. 40).

2.

The TAC shall continue in the role of independent monitor, as defined in

Section XV of the Settlement Agreement, at least for the duration of Period IV, plus an

additional six-month Continuation Period. (See Exh. D at § XV, p. 38; Exh. Eat § XV, p. 38).

3.

The TAC shall consist of three to five neutral experts in the child welfare

field. In no event shall the number of standing TAC members be less than three or more than

five. (See Exh. D at § XIV.A, p. 37; Exh. E at § XIV.A, p. 37).

4.

Defendants shall continue to fund the TAC's monitoring and technical

assistance functions. The Annie E. Casey Foundation ("the Foundation") has supported funding

1 The parties and the TAC are continuing to negotiate modifications of provisions, applicable to Period IV, and will separately present those to the Court for review and requested approval.
2 Enclosed as Exhibit D ("2008 Red-Lined Modified Settlement Agreement") is a red-lined version of the Settlement Agreement, which presents the proposed modifications set forth herein. Enclosed as Exhibit E is a final "clean" version of the 2008 Modified Settlement Agreement ("2008 Modified Settlement Agreement"), which incorporates all prior modifications to the Settlement Agreement approved by the Court and the proposed modifications set forth herein. For ease of reference, citations are provided to both the 2008 Red-Lined Modified Settlement Agreement and the 2008 Modified Settlement Agreement for all language discussed herein.

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of the TAC since the TAC's inception. The parties expect the Foundation will continue funding

through the end of calendar year 2008 at a reduced level. The parties do not expect any

Foundation funding to be available to support the TAC beyond the end of calendar year 2008.

Defendants shall make up any such reductions in funding through the end of calendar year 2008

and shall assume full responsibility for funding of the TAC thereafter. The TAC shall exercise

final authority over its use and expenditure of monitoring and technical assistance funding. (See

Exh. D at Section XV.H, p. 39; Exh. E at Section XV.H, p. 39).

5.

The TAC shall report on performance under the entire Settlement

Agreement after the end of Period IV. The TAC shall also report on performance during Period

IV. (See Exh. D at Section XV.A, p. 38; Exh. E at Section XV.A, p. 38).

6.

Only after the completion of Period IV, as defined in Section XVI, may

Defendants seek the termination of court jurisdiction over any specific provision in the

Settlement Agreement, as follows: (a) Defendants may seek the termination of court jurisdiction

over any specific provision of the Settlement Agreement if the Monitor finds substantial

compliance with the provision at the end of Period IV; (b) If the Monitor finds non-compliance

with the provision at the end of Period IV, and the Monitor subsequently finds sustained

compliance with the provision for two consecutive six-month periods after the end of Period IV,

Defendants may seek a ruling terminating court jurisdiction over that provision from the court.

(See Exh. D at Section XVIII.C, p. 55; Exh. E at Section XVIll.C, p. 55).

7.

The Settlement Agreement shall remain in full force and effect until at

least the conclusion of Period IV. Following the conclusion of Period IV, and after the Monitor

submits a report on compliance levels after Period IV, the Defendants may seek a ruling from the

court for the full termination of court jurisdiction over the Settlement Agreement based on

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Case 3:00-cv-00445 Document 282 Filed 10/01/08 Page 4 of 9 PageID #: 1890

achievement of the compliance levels specified, so long as there are no pending non-compliance

motions and no other pending remedial court orders based on non-compliance with any

provisions of the Settlement Agreement, unless Plaintiffs can demonstrate that continued court

jurisdiction is necessary to accomplish the purposes of the Settlement Agreement. (See Exh. D

at Section XVIII.C, p. 55; Exh. E at Section XVIILC, p. 55).

8.

The contemplated creation of Period IV and continued monitoring will

best further the purposes of the Settlement Agreement.

B. SPECIFIC MODIFIED PROVISIONS IN THE 2008 MODIFIED SETTLEMENT AGREEMENT

Pursuant to Section XVII of the Settlement Agreement, the parties agree to modifY the

Settlement Agreement, and request Court approval, as follows:

1. Delete the text of Section XIV.A of the Settlement Agreement in its

entirety and replace it with the following language:

A Technical Assistance Committee of three to five neutral experts in the child welfare field has been selected to assist the state in meaningful implementation of the requirements of this Settlement Agreement. The technical assistance committee will have the ability to consult and involve other experts as necessary. John Mattingly, of the Annie E. Casey Foundation, has agreed to convene the technical assistance committee and provide guidance and leadership, as he is available. Should any of the three to five technical assistance committee members become unavailable, the remaining technical assistance committee members will be authorized, but not required, to select replacement neutral child welfare experts to serve on the technical assistance committee. Appointment of additional technical assistance committee members shall require the consent of the parties and shall be made in a manner appropriate to meet DCS' evolving technical assistance needs. In no event shall the number of standing technical assistance committee members be less than three or more than five.

(See Exh. D at Section XIV.A, p. 37; Exh. E at Section XIV.A, p. 37).

2. Delete the text of Section XV.A of the Settlement Agreement in its

entirety and replace it with the following language:

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DCS shall enter into a contract consistent with the terms of this Settlement Agreement with an independent and neutral party who will monitor compliance with the terms of this Settlement Agreement. The TAC will function as the independent monitor, in the place of Sheila Agneil. The TAC shall continue in the role of independent monitor at least for the duration of Period IV, plus an additional six month Continuation Period. Prior to the conclusion of the Continuation Period, the parties, in consultation with the TAC, will determine whether it is advisable for the TAC to continue in the role of independent monitor following the expiration of the Continuation Period or whether a separate independent monitor should be retained to fulfill the responsibilities described in this section of the Settlement Agreement. The TAC shall report on performance under the entire Settlement Agreement after the end of Period IV. The TAC shall also report on performance during Period IV.
(See Exh. D at Section XV.A, p. 38; Exh. E at Section XV.A, p. 38).
3. Delete the text of Section XV.H of the Settlement Agreement III its
entirety and replace it with the following language:
Defendants shall continue to fund the TAC's monitoring and technical assistance functions. The Annie E. Casey Foundation ("the Foundation") has supported funding of the TAC since the TAC's inception. The parties expect the Foundation will continue funding through the end of calendar year 2008 at a reduced level. The parties do not expect any Foundation funding to be available to support the TAC beyond the end of calendar year 2008. Defendants shall make up any such reductions in funding through the end of calendar year 2008 and shall assume full responsibility for funding of the TAC thereafter. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
(See Exh. D at Section XV.H, p. 39; Exh. E at Section XV.H, p. 39).
4. Delete the text of the introductory paragraph after the title for Section XVI
and before subsection XVLA of the Settlement Agreement in its entirety and replace it with the
following language:
This section lists the child welfare outcomes and performance indicators related to practice improvements. Performance targets are listed for four time periods for the child welfare outcomes and the practice performance indicators. Period 1 covers 18 months beginning on September 1,2001. Period II began on March 1, 2003, and ended on November 31,2005, and Period III began on December 1, 2005, and ended on June 30, 2008. Period IV began on July 1,2008 and ends on December 31, 2009.
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(See Exh. D at Section XVI, p. 40; Exh. E at Section XVI, p. 40).
5. Delete the text of Section XVIII.C of the Settlement Agreement in its
entirety and replace it with the following language:
C. Termination and Exit
1. Only after the completion of Period IV as defined in Section XVI, Defendants may seek the termination of court jurisdiction over any specific provision in this Settlement Agreement, as follows:
a. Defendants may seek the termination of court jurisdiction over any specific provision of this Settlement Agreement if the Monitor finds substantial compliance with the provision at the end of Period IV. If plaintiffs do not agree that court jurisdiction should be terminated, defendants may seek a ruling terminating court jurisdiction over that provision from the court. The parties intend that the court shall grant termination ofjurisdiction over the provision only if (1) defendants can prove substantial compliance with the provision; AND (2) if plaintiffs fail to demonstrate that the provision is directly related to defendants' achievement of compliance with other provisions of this Settlement Agreement.
b. If the Monitor finds non-compliance with the provision at the end of Period IV, and the Monitor subsequently finds sustained compliance with the provision for two consecutive six-month periods after the end of Period IV, defendants may seek a ruling terminating court jurisdiction over that provision from the court. The parties intend that the court shall grant termination of jurisdiction over the provision only if defendants can prove substantial compliance with the provision AND if plaintiffs fail to demonstrate that the provision is directly related to defendants' achievement of compliance with other provisions.
2. This Settlement Agreement shall remain in full force and effect until at least the conclusion of Period IV. Following the conclusion of Period IV, and after the Monitor submits a report on compliance levels after Period IV, the defendants may seek a ruling from the court for the full termination of court jurisdiction over this Settlement Agreement based on achievement of the compliance levels specified, so long as there are no pending non-compliance motions and no other pending remedial court orders based on non-compliance with any provisions of this Settlement Agreement, unless plaintiffs can demonstrate that continued court
-7-
Case 3:00-cv-00445 Document 282 Filed 10/01/08 Page 7 of 9 PageID #: 1893

jurisdiction is necessary to accomplish the purposes of this Settlement Agreement. (See Exh. D at Section XVIlLC, p. 55; Exh. E at Section XVIII.C, p. 55). 6. The proposed modifications outlined above will best further the purposes of the Settlement Agreement. 7. The 2008 Modified Settlement Agreement, attached as Exhibit E hereto, replaces and supersedes the Settlement Agreement entered by the Court on May 11, 2007. Other
than as set forth herein, previous stipulations and orders in this action shall remain in full force
and effect.

Dated: September _, 2008 SO ORDERED:

DATE

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
l si Marcia Robinson Lowrv MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) CHILDREN'S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
-8Case 3:00-cv-00445 Document 282 Filed 10/01/08 Page 8 of 9 PageID #: 1894

/s/ David 1. Raybin DAVID 1. RAYBIN (TN BPR #003385) JACQUELINE B. DIXON (TN BPR #012054) HOLLINS, WAGSTER, WEATHERLY & RAYBIN, P.C. Fifth Third Center, Suite 2200 424 Church Street Nashville, Tennessee 37219 (615) 256-6666
OF COUNSEL FOR PLAINTIFFS:
RlCHARD B. FIELDS (TN BPR #4744) 688 Jefferson Memphis, TN 38105 (901) 578-7709
JOHN W. PIEROTTI (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glanlder Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR#016052) Ritchie, Fels & Dillard, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Douglas E. Dimond DOUGLAS E. DIMOND (TN BPR #017953) ELIZABETH C. DRlVER (TN BPR #019363) Office of the Attomey General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913
-9Case 3:00-cv-00445 Document 282 Filed 10/01/08 Page 9 of 9 PageID #: 1895

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

-------------- ----------------- ------- ---------------------------x

BRIAN A , by his next friend, Bobbi Jean BlOOks; )

TRACY E, by her next friend, Pamela Pallas;

)

JACK and CHARLES C, by their next friend,

)

Linda Lloyd;

)

AMY D_, by her next friend, Frank Koon;

)

DENISE E, by her next fIiend, Linda Lloyd;

)

CHARLETTE F , by her next friend, Juanita

)

Veasy; and

)

TERRY G_, by her next friend, CalOl Oldham

)

on their own behalf and on behalf of all others

)

similarly situated,

)

)

Plaintiffs.

)

)

--against --

)

)

PHIL BREDESEN, Governor of the State

)

of Tennessee; and

)

VIOLA MILLER, Commissioner of the

)

Tennessee Department of Children's Services

)

)

Defendants

)

---------------------------------------------------------------x

Civil Action No_ 3-00-0445
Judge Campbell Magistrate BlOwn

MODIFIED SETTLEMENT AGREEMENT

Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 1 of 58 PageID #: 839

TABLE OF CONTENTS

Preamble.

.4

1.

Principles of Settlement Agreement and Class Definition

4

A

Principles of Settlement Agreement

4

B

Class Definition

.6

C Ptinciples of Tennessee's Child and Family Team Meeting Model

6

II. Structure of the Agency

7

III. Reporting Abuse and Neglect

.7

IV Regional Services.

8

V Staff Qualifications, Training, Caseload, Supervision

8

VI Placement and Supervision of Children

13

VII Planning for Children: Minimum Standards for All Children and Youth .

.21

VIII Fr eeing a Child for Adoption ..

25

IX Resource Parent Recruitment, Retention, and Approval

29

X Statewide Information System

31

XI Quality Assurance

32

XII Supervision of Contract Agencies.

35

XIII Financial Development

36

XIV Technical Assistance Committee

.37

XV Monitoring.

38

XVI Outcome and Performance Measures

40

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XVII Modification .

XVIII EnfOl cement, Termination and Exit.

A

General Principles Guiding Enforcement

B. Dispute Resolution

C. Termination and Exit

XIX Named Plaintiffs

XX. Attorneys Fees and Expenses

. .. .53 ..53 53 53 55 . .55 . .56

Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 3 of 58 PageID #: 841

PREAMBLE

A The provisions of this Settlement Agreement resolve the existing disputes and issues in the case of Brian A., et aI., v. Don Sundquist, et aI., Civil Action Number 3-00-0445 (Judge CampbelllBrown), and satisfy and resolve the claims of the named plaintiffs and the plaintiffs' class in the above-entitled case as of the date of this Settlement Agreement

B This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this Settlement Agreement

C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this Settlement Agreement for as long as the Settlement Agreement remains in effect

D Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this Settlement Agreement For as long as this Settlement Agreement remains in effect, all provisions of this Settlement Agreement referring to the "Department," the "Department of Children's Services" or "DCS," upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children's Services concerning the children in the plaintiff class as defined in this Settlement Agreement, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current Tennessee Department of Children's Services under this Settlement Agreement as of the date of this Settlement Agreement

E This Settlement Agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.

I

PRINCIPLES OF SETTLEMENT AGREEMENT AND CLASS DEFINITION

A Principles of Settlement Agreement

I

All children should have the best possible opportunity to grow up within a

safe, nurturing family, either their biological family or, if that is not

possible, within an adoptive family

2

The state should make reasonable efforts to avoid foster care placement by

providing services to preserve the biological family whenever that is

reasonably possible However, child welfare decision-makers must have

the professional capacity to make determinations as to when making

efforts to preserve the biological family, or leaving the child with that

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family, is neither safe fOI the child nor likely to lead to an appropriate result for the child

3 After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency

4

Foster care should be as temporary an arrangement as possible, with its

goal being to provide a permanent home for the child as quickly as

possible. In making the determination about what plans and services will

best meet this goal, the child's interests must be paramount

5 The state has primary responsibility for the care and protection of children who enter the foster care system Insofar as it relies on private contractors to assist in meeting this responsibility, it should only do so according to standards set by and rigOIously monitored by the state

6 All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities

7 Children in foster care placement should be in the least restrictive, most family-like setting possible, and the state should make all efforts to avoid the use of non-family settings for children, particularly young children.

8 Children in foster care placement should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family

9. Children in out-of-home placement must have timely decision-making about where and with whom they will spend their childhood, and timely implementation of whatever decisions have been made

10 Families of children in foster care should be significant participants in the planning and decision-making concerning their children

11 The state should achieve these goals in a family environment whenever possible, separating the child hom the child's parents only when necessary for the child's welfare OI in the interest ot the child's safety, keeping a child as close to home as possible

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12 All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized
13 Except where a particular provision of this Settlement Agreement establishes a specific limit on the resources requited to be allocated, defendants shall commit all necessary reSOUIces (administrative, personnel, financial and otherwise) to implement all provisions of the Settlement Agreement
14 All actions required for plaintiff class member s under the Settlement Agreement shall be documented within the individual case file of each member of the plaintiff class DCS shall have the ability to produce aggregate data requested by the Monitor concerning compliance with the provisions of this Settlement Agreement
B Class Definition
Pursuant to the terms of this Settlement Agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of the Tennessee Department of Children's Services. "Foster children" shall mean all children who are or will be in the legal custody of the Tennessee Department of Children's Services, excluding children who are 01 will be in the legal custody of the Department of Children's Services upon an allegation 01 adjudication of a delinquent or criminal act Children who are 01 will be in the custody of the Department of Children's Services upon an allegation or adjudication of an umuly 01 status offense shall be included in the class, and children who are or will be in the custody of the Department of Children's Services upon on allegation of a delinquent 01 criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of the Department of Children's Services, shall be included in the class
C Principles of Tennessee's Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own SUppOlt persons in the process of ensUIing the safety, permanency and wellbeing of children involved with DCS Tennessee's Child and Family Team Meeting (CFTM) model shalI be guided by the following principles:
AlI children in foster care must have a CFTM that meets regularly throughout a child's time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues as they arise.
Case 3:00-cv-00445 Document 265 F,6iled 05/11/07 Page 6 of 58 PageID #: 844

2. In addition to the child/youth and their own family, the Child and Family Team should include, and the CFTM process should engage, people who represent both formal and informal supports for the family
3 CFTMs should include pre-meeting preparation, including the preparation of family members, including face-to·-face meetings with the child as appropriate, recognizing that in the emergency circumstances that surround some placement CFTMs there would be less time for premeeting preparation
4. Children should not enter custody without the convening of a CTFM, should not have a permanency plan established or updated without the convening of a CFTM, should not disrupt from a placement without the convening of a CFTM, and should not be discharged from care without the convening of a CFTM
5 Case managers should effectively serve as the primary persons responsible for building, preparing and maintaining Child and Family Teams; facilitating CFTMs to develop Permanency Plans; monitoring progress and revising Permanency Plans as needed; and tracking them to goal achievement
II STRUCTURE OF THE AGENCY
A DeS shall establish child welfare policy and determine statewide standards and practices for the entire state. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that uniform forms and data collection and reporting are utilized in each region. Regions retain the right to develop and use forms and data instruments that address issues of local concern
III REPORTING ABUSE AND NEGLECT
A DCS's system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed to ensure that all reports are investigated within established time periods
B All matters of abuse or neglect of foster children in DCS custody shall be investigated by the child protective services unit in the manner and within the time frame provided by law. All matters concerning abuse or neglect of foster children in DCS custody in institutional, group, residential or contract agency foster home placements shall also be referred to and reviewed by the quality assurance unit and, as appropriate, the licensing division The purpose of this review is to deter mine whether a pattern of abuse or neglect exists within the institutional, group, residential or contract agency foster home placements that contributed to the abuse or neglect; whether the facility should be closed or the
Case 3:00-cv-00445 Document 265 F7 iled 05/11/07 Page 7 of 58 PageID #: 845

contract terminated; and what other steps are necessary to safeguard the wellbeing of the children in the facility. The quality assurance unit and, where appropriate, the licensing division, shall be responsible for taking appropriate action, including the development of a corrective action plan, monitoring the implementation of any corrective action plan, and determining if additional monitoring is needed This review (and any necessary investigation) shall be completed within 90 days, and DCS shall provide all necessary interim actions prior to, during and after any investigation, and shall provide reports of any investigation to the Monitor

IV REGIONAL SERVICES

A Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible

B Each region shall have available or shall develop a full range of community based family services, which shall be available to:

I

Foster families for whom children have established a significant,

beneficial emotional bond and which provide the possibility of long-term

stability and permanence, but which are in danger of disrupting without

intensive home-based crisis intervention services;

2

Families to whom children in foster care could be returned safely with the

availability of intensive family services for a transition period; and

3

Adoptive families in which an adoption contract has been signed and, who

prior to finalization, are in danger of disrupting without intensive home-

based crisis intervention services.

V. STAFF QUALIFICATIONS, TRAINING, CASELOAD, SUPERVISION

A All provisions of this section shall apply to all DCS Case Managers 1-4, Community Service Agency (CSA) custodial case managers, all contract agency foster care case workers and supervisors, and any other workers with corresponding responsibilities for class members . As of December 1,2001, no CSA employees shall have any supervisory responsibility over case managers of children in the plaintiff class. As of December 1,2001, there shall be at least a 50% reduction of the current number of class members receiving case management flom CSA case managers, and CSA case managers in Davidson and Shelby Counties shall no longer have caseloads that include class members . As of July 1, 2002, CSA case managers shall no longer have caseloads that include children in the plaintiff class

Case 3:00-cv-00445 Document 265 .F;8iled 05/11/07 Page 8 of 58 PageID #: 846

B. Qualifications for case managers responsible for cases of class members shall be as follows:

1 A Case Manager 1 shall have a bachelOl' s degree, with employment preference given to applicants holding a bachelOl' s degree in social wOlk or a related behavioral science. No Case Manager 1 shall be promoted to Case Manager 2 until the completion of a job performance evaluation developed in consultation with the technical assistance committee (defined in Section XIV in this Settlement Agreement). Such evaluation tool shall include evaluation of their perfOlmance on the case management requirements of this Settlement Agreement Failme to receive a satisfactOlY job perfOlmance evaluation at the end of one year will result in the termination of the case manager's employment

2 A case manager 2 must have either been promoted from case manager 1, 01 have at least a bachelOl's degree, with employment preference given to applicants holding a bachelor's degree in social wOlk or a related behavioral science and one year experience in providing child welfare services . No Case Manager 2 shall be promoted to Case Manager 3 until the completion of a job performance evaluation developed in consultation with the technical assistance committee. Such evaluation tool shall include evaluation of their perfOlmance on the case management requirements of this Settlement Agreement. Failme to receive a satisfactory job perfOlmance evaluation at the end of six months will result in the termination of the case manager's employment

3

A Case Manager 3 must have either been promoted from Case Manager 2;

01 have at least a bachelOl' s degree, with employment preference given to

applicants holding a bachelOl's degree in social work 01 a related

behavioral science, and two years experience in providing child welfare

services A master's degree in social wOlk or a related behavioral science

may substitute fOl one year experience in providing child welfare services

C In consultation with the technical assistance committee, the state shall develop and implement stipends and other incentives to SUppOlt graduate wOlk that will provide reasonable steps to enable the state to hire and retain case managers with under graduate and graduate degrees in social work and relevant and related fields As part of this process, the state will assess and determine whether salary increases are necessary to ensure that Tennessee is competitive with neighbOling states conceming compensation fOI case managers and supervisors

D. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing training, as specified below, and after passing a skills-based competency test, the content and passing standards fOl which shall be developed in consultation with the technical assistance committee

Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 9 of 58 PageID #: 847

E. DCS shall have a full-time training unit headed by a chief of lIaining with appropr iate qualifications

1 In consultation with the technical assistance committee, this unit shall have sufficient staffing, budget funds, and other resources to aSSUle that it can provide comprehensive child welfare lIaining to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this Settlement Agreement, DCS policy, and reasonable professional standards

2 This unit shall determine, on an annual basis, those DCS worker s in need of retraining, as indicated by workers' failUle to ensure that cases for which they are responsible meet the requirements of this Settlement Agreement, DCS policy and/or reasonable professional standards, and shall ensure that additionallIaining is provided to them. Workers who fail to meet the requirements of this Settlement Agreement, DCS policy and/or reasonable professional standards, despite the provision of additional lIaining, shall be eligible for reassignment or termination .

.3

The details of both a pre-service and in-service training program for case

managers as determined necessary shall be reviewed and developed in

consultation with the technical assistance committee All case managers

shall have a minimum of 160 hours of pre-service training, including

instructional training and supervised field training. All case manager

supervisors shall receive a minimum of 40 hOUlS of in-service lIaining that

is directed specifically at the supervision of child welfare case workers,

prior to receiving any supervisory responsibilities All case managers

shall receive a minimum of 40 hOUlS of ongoing lIaining each year All

case managers with supervisory responsibility shall receive a minimum of

24 hOUlS of in-service training each year

4

Prior to contracting with any agency, DCS will review, approve, and

monitor the cUlriculum for caseworker pre-service and in-service lIaining

to aSSUle that general content areas are appropriate to the work being

performed by the agency. Where casework activities mirror the duties of

the DCS case manager, the curriculum will conespond with DCS pre-

service and in-service training As a minimum, DCS will require 80 hours

of pre-service instructional training and 80 hOUlS of pre-service supervised

field tr aining, as well as 40 hours of ongoing tr aining each year .

F. No Case Manager 1 having responsibility for the case of any class member shall have a case load totaling more than 15 class members, or, for those workers canying a mixed caseload, the weighted equivalent, as those weights have been determined in consultation with the technical assistance committee No Case Manager 2 or 3 having responsibility for the case of any class member shall have

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a case load totaling more than 20 class members, or, for those workers carrying a mixed caseload, the weighted equivalent, as those weights have been determined in consultation with the technical assistance committee. Case managers with an adoptions caseload shall not have a caseload totaling more than 12 children in the plaintiff class Case Manager 3' s having no supervisory responsibility shall not have a caseload of more than 20 Case Manager 3' s that supervise shall have a weighted caseload. Case Manager 3's supervising up to two lower level case managers shall not have caseloads totaling more than 10 A Case Manager 3 supervising three or more lower level case managers shall not have a caseload. A case manager 3 shall not supervise more than 4 case managers. Case manager 3's shall be given supervisory responsibility only in circumstances in which the caps on supervisory caseloads dictate that an additional case manager 4 would have less than a full supervisory case load A single case manager assigned to a case shall have full responsibility for that case, including the responsibility to work with the child and the family and to visit with both for the purposes of assessing and meeting the child's and the family's needs, determining and implementing a permanency plan, supervising, supporting and assuring the stability of the child's placement and assuring a safe, adequate and well planned exit from foster care

1. All case managers or case workers with supervisory responsibility for case managers or case workers canying the cases of any class members (i e , team leaders or supervisors) shall have a minimum of a master's degree in social work or related behavioral field with a child or family focus (excluding criminal justice) and at least three years experience as a case worker in child welfare; however, an additional 2 years ofproviding child welfare services may substitute for the master's degree (this sentence shall not apply to supervisors cunently holding their positions as of the date of this Settlement Agreement or employees who are cunently eligible for appointment as team leaders as of the date of this Settlement Agreement) No team leader/supervisor shall assume his or her supervisory responsibility until after completing training as specified herein, and after passing a skills-based competency test geared specifically to child welfare supervIsIon

2

By January 1,2002,50% of all team leaders or supervisors shall supervise

no more than 7 case managers or case workers at anyone time, and shall

not callY their own caseloads. By April 1, 2002, all team leaders or

supervisors shall supervise no more than 7 case managers or case workers

at anyone time, and shall not carry their own caseloads By January 1,

2003,50% of all team leaders or supervisors shall supervise no more than

6 case managers or case workers at anyone time, and shall not callY their

own caseloads . By April 1,2003, all team leaders or supervisors shall

supervise no more than 6 case managers or case workers at anyone time,

and shall not callY their own caseloads By January 1,2004,50% of all

team leaders or supervisors shall supervise no more than 5 case managers

or case workers at anyone time, and shall not cany their own caseloads

By April 1, 2004, all team leaders or supervisors shall supervise no more

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than 5 case managers or case workers at anyone time, and shall not cany their own caseloads If team leaders or supervisors have any responsibilities other than the direct supervision of case-canying case managers or case workers, their responsibilities shall be weighted, and their supervisory case load reduced to an equivalent weighted caseload
3 ehild care workers employed in any child care facility or program providing placements and services to children in foster care and their families shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience
4 All persons applying for positions with DeS or a contract agency which involve any contact with children shall be required to submit to a criminal recor ds check and a child abuse registry screening process before beginning training or employment. No DeS or contract employee who has any contact with children shall have been convicted of a prior felony for an offense designated as a crime against the person or have been the
subject fu. , alleged perpetrator) in any substantiated or indicated case of
child abuse or neglect. An individual who has been convicted of any prior felony may not be employed by DeS or a contract agency in a position involving contact with children unless: (1) the conviction occurred at least 5 years prior to the employee's hiring; (2) the employee has not been convicted of any other criminal offense since that conviction; (3) the DeS regional administrator or agency program director personally reviews the circumstances of the applicant and determines that this employee could work productively and constructively with children An individual who has been convicted of any prior misdemeanor may not be employed by DeS or a contract agency in a position involving contact with children unless criteria ##2-3 above are satisfied. If, however, any employee for whom the above criteria has been satisfied is the subject of a criminal conviction or becomes the subject in any substantiated or indicated case of child abuse or neglect during his/her employment, the employment shall be immediately terminated The section is not applicable to employees convicted of delinquent offenses This provision shall not apply to foster and adoptive parents.
5 When a case manager leaves the agency, his/her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior notice, all transfers of cases between case managers shall take place after a face-to-face meeting, including the departing and the receiving case manager's supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child's parents
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6. Any region with an annual case worker tumover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall establish and maintain a pool of trained workers available to take over the caseloads of departing workers
G Case recordings and all other documentation conceming contacts or developments in the cases of class member s shall be added to the case file for that child within 30 days of the case work activity or development The case files of class members shall contain adequate documentation tracking the services provided, progress, any change in placement of the child, and authorizations which document the approval for placements, treatment and services provided to each child
VI PLACEMENT AND SUPERVISION OF CHILDREN
A DCS shall immediately conduct a statewide needs assessment, under the supervision and auspices of an independent expert chosen by the technical assistance committee This needs assessment shall be completed by November 1, 2001, unless the independent expert determines that additional time is necessary, which shall not exceed 60 days. The results of the needs assessment shall be publicly available 15 days after the results are provided in written form to the Monitor and the Commissioner. This needs assessment and all future needs assessments will determine the need for new andlor different placement and services resources, and where those placements and services should be located. This independent expert and the technical assistance committee may consider DCS's past and present efforts in the area ofneeds assessment but the independent expert shall independently determine the manner and methodology of the needs assessment to be performed. The needs assessment shall be updated annually under the supervision of the independent expert for two years, and under the supervision of the technical assistance committee thereafter However, after the first year, upon the determination of the technical assistance committee that the independent expert should be replaced, the technical assistance committee may appoint a new independent expert for the second year The assessments shall include a plan and timetables within which the findings of the needs assessment shall be implemented, beginning immediately after the completion of the needs assessment DCS shall provide funding to implement the findings of the needs assessments DCS will commit 4 million dollars over each of five years from the date of this Settlement Agreement In addition, DCS will establish a 2 million dollar contingency fund for each of five years flom the date of this Settlement Agreement If the costs of the recommendations flom any needs assessment exceed the available funding for that year, DCS will consult with the technical assistance committee to get assistance in crafting effective methods through grants, direct appropriations and other resources, to fund the recommendations Dur ing any of five years flom the date of this Settlement Agreement, DCS may choose to accelerate the spending of state appropriated funds designated for those years
Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 13 of 58 PageID #: 851

B A child shall be considered to have entered foster cme custody on the date that the child enters DCS's physical, out-oI-home custody, or on the date on which the child enters DCS's legal custody, whichever is sooner The duration of a child's time in foster care custody shall include the entire time period after which a child entered foster care custody until formally dischmged from foster care custody, including but not limited to any and all emergency, shelter or other tempormy placements during which the child is in DCS's physical, out-of-home custody or legal custody.
C All children shall be placed according to the following standmds:
All children shall be placed within their own region or within a 75 mile radius of the home through which the child entered custody, unless the child's needs are so exceptional that they cannot be met by a family or facility within the region, or the child needs re-placement and the child's permanency goal is to be returned to his pments who at that time reside out of the region or the child is to be placed with a relative out of the region, under which circumstances the regional administrator or the team coordinator shall be specifically required to so certify in writing, based on his or her own examination of the circumstances
2 Children shall not remain in emergency or tempormy facilities, including but not limited to emergency shelters, for more than 30 days Children shall not be placed in more than one shelter or other emergency or tempormy facility within any 12 month period An exception to the multiple placement limit within any 12-month period may occur for an individual placement episode for a maximum of 5 days The exception shall only apply to mnaways and children facing a direct threat to their safety, or who me a threat to the safety of others, where immediate removal is necessmy As an additional exception to the multiple placement limit within any 12-month period, if a child's behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement, and the regional administrator certifies in writing that the assessment is essential for an appropriate placement, there may be a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days
3 No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in ajail, cOITectional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court Within 60 days of the signing of this Settlement Agreement, DCS shall inform the appropriate law enforcement offices and judicial officials in all Tennessee counties of this policy. DCS shall provide law enforcement andjudicial officials with
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written instructions to immediately notify Des of any child in DeS legal custody who has been placed in a jail, correctional or detention facility
4. DeS shall not place any child determined by a Des assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined
5 All children shall be placed in accordance with their individual needs, taking into account the child's needs to be placed as close to home and community as possible, the need to place siblings together, and the need to place children in the least restrictive, most home-like setting.
6 Siblings who enter placement at or near the same time shall be placed together, unless doing so is harmful to one Ol more of the siblings, one of the siblings has such exceptional needs that can only be met in a specialized plOgram Ol facility, Ol the size of the sibling glOup makes such placement impractical notwithstanding diligent effOlts to place the glOUp together If a sibling glOUp is separated at the initial placement, the case manager shall make immediate effOlts to locate Ol recruit a family in whose home the siblings can be reunited These effOlts will be documented and maintained in the case file.
7 No child shall be placed in a foster home if that placement will result in more than three foster children in that foster home, Ol a total of six children, including the foster family's natural andiOl adopted children. No placement will result in more than 3 children under the age of 3 residing in a foster home An exception in the best interests of the child shall apply under which the regional assistant commissioner will be allowed to make an exception on an individual basis that is documented in the child's case file. Such exception shall not be made in mOle than 10% of all placements made annually in each grand region All such exceptions in each grand region and the detailed reasons justifying each exception shall be reported by the assistant commissioner for each grand region to the MonitOl annually, from the date of this Settlement Agreement The only other exception to these limits shall be in those instances in which the placement of a sibling glOUp in a foster home with no other children in the home would exceed these limits
8 No child under six years of age shall be placed in a group care non-foster family home setting, except for children with exceptional needs which cannot be met in any other type of placement and upon the express written approval by the regional administratOl. Such applOval shall be based on the regional administratOl' s certification based on a personal determination that the child's needs can only be met in that specific facility, including a description of the services available in the facility to address the individual child's needs
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9

No child shall be placed in a residential treatment center or any other

group care setting with a capacity in excess of eight children without

express written approval by the regional administrator. Such approval

shall be based on his or her certification and specific findings that the

child's needs can be met in that specific facility, including a description of

the services available in the facility to address the individual child's needs

and that the facility is the least restrictive placement that could meet this

child's needs

10 Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility

11 Race and/or ethnicity and/or religion shall not be the basis for a delay or denial in the placement of a child, either with regard to matching the child with a foster or adoptive family or with regard to placing a child in a group facility Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family DCS shall not contract and shall immediately cease contracting with any program or private agency that gives preference in its placement practices by race, ethnicity, or religion.

12 DCS shall only contract for placements or services with licensed contr actors or subcontr actors

D All children in DCS custody shall receive an assessment using a standardized assessment protocol. The assessment shall include a medical evaluation and, if indicated, a psychological evaluation The assessment may take place prior to custody, if the need for placement is known in advance, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child's placement shall be reevaluated to ensure that it meets the child's needs and, if not, a new placement obtained The technical assistance committee shall review DCS's assessment protocol, to determine if it constitutes a complete assessment of a child's individual needs, and if it does not, it will recommend revisions which DCS shall implement

E All children in DCS custody shall have access to a reasonable and appropriate education, including special education services the need for which shall be timely identified. Children shall be placed in community schools whenever possible. Within 60 days of the signing of this Settlement Agreement, DCS shall undertake an evaluation of all "in house" schools located within group, residential or institutional facilities, to determine if such schools are providing children in foster care with access to a reasonable and appropriate education, including special education services the need for which shall be timely identified, and to determine if such schools are providing educational services as required by law This evaluation will be designed in close collaboration with the technical assistance

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committee and any educational experts it deems appropriate. The technical assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation. Des shall implement the results of the technical assistance committee's recommendations as they pertain to any schools within the DeS local educational authority (LEA). DeS shall require all recommendations of the technical assistance committee to be mandatory contractual obligations for any contract agency providing "in house" schools located within group, residential or institutional facilities. Within 6 months of the date of the recommendations of the technical assistance committee, DeS shall terminate the conttact with any agency providing "in house" schools located within group, residential or institutional facilities that have not implemented the recommendations of the technical assistance committee, unless the contract agency demonstrates to the approval of the technical assistance committee that additional time up to 6 months is necessary to complete implementation of the recommendations. Des shall assign a full time educational specialist in each region to ensure that individual children in DeS custody have access to a reasonable and appropriate education, including special education services the need for which shall be timely identified Des shall assign twelve additional lawyers statewide who will specialize in representing children in DeS custody to ensure that individual children in DeS custody have access to a reasonable and appropriate education, including special education services the need for which shall be timely identified
F Psycho-tropic medication shall not be used as a method of discipline or control for any child Within 6 months of the signing of this Settlement Agreement, DeS shall undertake a review of the policies and procedures sUlrounding the use of psycho-tropic medications . This evaluation will be designed in close collaboration with the technical assistance committee and any additional expeIts on the use of psycho-tropic medication for children it deems appropriate The technical assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation, which DeS shall implement Within 6 months of the signing of this Settlement Agreement, DeS shall create and as soon as possible thereafter fill a position of full time Medical Director, with appropriate qualifications, who shall, among other things, be responsible for overseeing the implementation of policies and procedures concerning the use of psycho-tropic medications for all children in DeS custody, and who shall have the authority to issue and impose corrective actions . The Medical Director shall report directly to the Commissioner of Des. When possible, parents shall consent to the use of medically necessary psychotropic medication In the event that a parent is not available to provide consent for psycho-tropic medication, the regional health unit nUlse shall review and consent to medically necessary medication. Regional health unit nurses shall maintain a log of psycho-tropic medication approvals as well as copies of logs maintained by conUact agencies for all uses of psycho-tropic medication and shall submit the logs to the Medical Director for review on an ongoing basis
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G Within 6 months, of the signing of this Settlement Agreement, DCS shall undertake a review of the policies and procedmes surrounding all forms and use of physical restraint and seclusion/isolation of children in the plaintiff class. This evaluation will be designed in close collaboration with the technical assistance committee and any additional experts on the use of restraint and seclusion/isolation for children it deems appropriate The technical assistance committee shall make recommendations, which shall include timetables for implementation, promptly upon reviewing the results of the evaluation, which DCS shall implement. Within 6 months of the signing of this Settlement Agreement, DCS shall create and as soon as possible thereafter fill a position of full time Medical Director (same position identified in VI.F. herein), with appropriate qualifications, who shall, among other things, be responsible for monitoring the implementation of policies and procedmes surrounding all forms and use of physical restraint and seclusion/isolation of children in DCS custody, and who shall have the authority to issue and impose corrective actions The Medical Director shall report directly to the Commissioner of DCS All uses of physical restraint for children in any placements, and all uses of seclusion/isolation in group, residential or institutional placements, shall be reported to the central office resource management unit Such reports shall be made available to the licensing unit and the Medical Director for appropriate action

H

DCS shall not contract with any agency, for which any owner, member of the

board of directors, or member of the board oftrustees of that private agency also

holds any other position which may influence the placements provided to children

in the plaintiff class. Such positions include, but are not limited to, juvenile court

judges, referees or other court officers involved in the individual cases of children

in foster care Within 30 days of the signing of this Settlement Agreement, DCS

shall notify all contract agencies involved in foster care placements and services

of this policy, and shall receive written confirmation from all agencies with

existing contracts that they will be in compliance with this policy within 60 days

of receiving the written notice, after which time DCS shall terminate its contract

with any agency that is not in compliance with this policy All futme contracts or

contract renewals shall contain this policy as a binding term of the contract

I

DCS shall have a full range of independent living services and shall provide

sufficient resources to provide independent living services to all children in the

plaintiff class who qualify for them.

J

DCS will establish and maintain a resomce management unit within its central

office. The resource management unit will be responsible for training regional

staff on placement issues so that regional placement resomce management units

are able to ensure a careful and appropriate match between the child's individual

needs and a placement facility or foster family DCS's unified computer system

will allow for the central office and regional offices to track the following

information concerning placements provided by directly by DCS or through

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contract agencies: the facility's 01 contract agency's cunent license and accreditation status and whether any repOlts of abuse 01 neglect have been filed andlor substantiated against the facility or agency within the last three years; whether the facility or contract agency has any vacancies; the ages and genders of children whom the facility or agency is licensed to accept; the age and gender of all children in the facility or agency; the level of care that the facility or agency can provide; specialized services available through the facility, agency 01 by the foster parents; and the total number of children who may reside in the facility or with the agency at anyone time pur suant to the facility's or agency's license. DeS will establish and maintain regional resource management units with sufficient staff and other resources to ensure all children requiring placement are placed promptly and appropriately, and in accOldance with their needs Any agency or program contracting with DeS shall be prohibited from refusing to accept a child refened by Des as appropriate fOl the particular placement 01 program

K All children in the plaintiff class shall receive visits flam the DeS case manager responsible for their case, whether the child is placed through a program directly run by Des or through a contract agency, as follows:

I

FOI children in DeS foster homes, worker -child visiting shall mean a face-

to-face visit between the child's DeS case manager and the child Visits

may take place in the child's placement, at school if the child is of school

age, in the case manager's office, O! in another appropriate setting. Visits

shall be made as frequently as is necessary to assure the child's adjustment

to the placement, to ensure the child is receiving appropriate treatment and

services, and to determine whether the child's needs are being met and

service goals are being implemented A new placement shall mean either

the child's entrance into custody 01 any placement that is different from

the immediately priO! placement All visits shall include a private meeting

between the case manager and the child out of the presence of the foster

parents or other caretaker, except fOl those cases in which the child is an

infant. There shall be at least 6 face-to-face visits during the first two

months a child is in a new placement, and at least .3 of these visits shall

take place in the child's placement. Following the first two months a child

is in a new placement, there shall be at least 2 face-to- face visits each

month.

2

For children in a foster home or facility operated by 01 under a private

contract agency:

a

Private agency case wOlker: DeS shall require and ensure that the

private agency case wOlker visits the child as frequently as

necessary to ensure the child's adjustment in placement, to ensure

the child is receiving appropriate treatment and services, and to

determine that the child's needs are being met and service goals

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are being implemented Visits may take place in the child's placement, at school if the child is of school age, in the case manager's office, 01 in another appropriate setting Worker-child visiting shall mean a face-to-face visit between the child's private agency case wOlker and the child A new placement shall mean either the child's entrance into custody in a foster home 01 facility operated by 01 under a private contract agency, or any placement in a foster home or facility operated by or under a pr ivate contract agency that is different from the immediately prior placement All visits shall include a private meeting between the private agency case worker and the child out of the pr esence of the foster parents or other caretaker, except for those cases in which the child is an infant There shall be at least 6 face-to-face visits during the first two months a child is in a new placement, and at least 3 of these visits shall take place in the child's placement Following the first two months a child is in a new placement, there shall be at least 2 face-to-face visits each month.

b

DeS case manager: The Des case manager shall visit each child

in a foster home or facility operated by or under a private contract

agency as frequently as necessary to ensure the child's adjustment

to the placement, to ensure the child is receiving appropriate

treatment and services, and to determine that the child's needs are

being met and service goals are being implemented, but at least

once each month Worker-child visiting shall mean a face-to-face

visit between the child's DeS case manager and the child in the

child's placement All visits shall include a private meeting

between the DeS case manager and the child out of the presence of

the foster parents or other caretaker, except for those cases in

which the child is an infant, and, outside the presence of the

facility staff and the private contract agency case worker The

private contract agency case worker shall accompany the Des case

manager to these visits at least once every three months in order to

have substantial discussions with each other, the foster parent(s) or

other caretaker, and the child, if age appropriate

l

DeS, in close collaboration with the technical assistance committee and any

additional experts the technical assistance committee deems appropriate, if any,

shall review the delivery of services and payment structure of "continuum"

contracts The technical assistance committee shall report on the results of the

review and make recommendations Des shall implement the recommendations

of the technical assistance committee in regard to the delivery of services and

payment structure of "continuum" contracts However, such recommendations

may not include the elimination of the use of "continuum" contracts.

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VII PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A DCS shall maintain and update policies and procedures that will establish a planning process for all foster children in DCS custody that (1) initially will seek to work intensively with the child's parents and other appropriate family members to allow the child to remain safely at home, if appropriate; (2) in those instances in which removal from the home is necessary, will work intensively with the child's parents and other appropriate family members in a collaborative process to return the child home quickly under appropr iate circumstances consistent with reasonable professional standards; and (3) if return home is not appropriate or cannot be accomplished safely within a reasonable period of time, will assure the child an alternative, appropriate permanent placement as quickly as possible
B In addition to the child's case manager, the child/youth and his or her own family, the Child and Family Team shall include persons who represent both formal and informal supports for the family A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, the Discharge Planning CFTM, and any CFTM if the case manager has less than one year of experience. For any child who has been in custody for twelve (12) months or more, the supervisor will participate in a CFTM at least one time every six months. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case, the availability of other supports in the meeting such as a full time or skilled facilitator, and the experience of the case manager.. The following persons shall be Child and Family I earn members as appropriate: (1) contract agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child's parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL for the child if one has been appointed or CASA worker for the child if one has been appointed. For all CFTMs, if the child is 12 years or older, the child shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child's participation would be contrary to hislher best interests
C The Department shall begin the process of building a team, assessment, and convening a formal meeting prior to children entering state custody, except when an emergency removal is wan anted due to immediate needs for child safety and protection In the case of an emergency removal, an Initial CFTM team shall be convened no later than seven (7) days after a child enters state custody The purposes of the Initial CFTM shall be to discuss the strengths of the family and the issues that necessitated the child's removal; to explore alternatives to custody that would ensure the safety of the child; to identify the family's basic needs that must be addressed immediately; to identify the changes by the parents that may be necessary to allow the child to return home safely; to identify the services that
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need to be provided to the parents to allow the child to return home; to determine the appropriateness of the child's placement; to aITange a visitation schedule between the child and the parents; to ensure that all reasonable efforts will be made to enable the visitation to take place; to anange an immediate schedule of contacts between the parents and the worker; and to begin developing the permanency plan. In all instances in which it is impossible to meet with the parents, the planning process shall begin as described above, notwithstanding the parents' absence, within the time period set forth above. Efforts to ensure the parents' participation shall include providing transportation andlor child cale and/or a brief rescheduling, and shall be documented in the child's case file
D The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child enteIing custody. In the event that the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place The purposes of this meeting shall be to further collaborate with the family on the development of a plan that will address the problems that necessitated the child's removal; to specify the changes or action to be taken by the parents that may be necessary to allow the child to return home safely; to identify the services that need to be provided to the parents and the child to ensur e a successful reunification; and to determine the appropriateness of the child's placement The plan shall be built upon family strengths, address the family's and child's needs, and designate timeframes for the completion of actions that will help the child and family to achieve permanency and stability as soon as possible Whether the permanency goal is reunification, exit custody to live with relatives, Planned Permanent Living Arrangement or Adoption, permanency plans shall contain specific information about how the permanency goal will be achieved, what services ale necessary to make the accomplishment of the goal likely, who is responsible for the provision of those services, when the services will be provided, and the date by which the permanency goal is likely to be achieved Time periods for achieving permanency goals shall be specific to the child and not merely tied to the scheduling of subsequent administrative or periodic reviews or meetings All services documented in the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the opportunity to sign a completed handwritten or typewritten permanency plan at the conclusion of the Initial Permanency Planning CFTM. If a completed typewritten permanency plan was not available for the biological parents to sign at the conclusion of the Initial Permanency Planning CFTM, one shall be presented to the child's biological parents for discussion and signature no later than sixty (60) calendar days after the child enters custody, and prior to the presentation of that plan to the court
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E The Department shall convene a Placement Stability CFIM prior to any child or youth potentially dismpting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change. The purposes of this meeting shall be to review progress in the current placement and determine if the cunent placement is still appropriate to meet the child's needs; to determine whether or not the CUIIent placement can be maintained and develop a plan to support the child's needs and stabilize the cunent placement; and if the current placement is not appropriate and/or cannot be maintained, to develop a plan for the transition to an alternative placement in the least traumatic manner possible If a change in placement has already taken place, the team shall explore ways to help strengthen the present placement and prevent any future dismptions
A disruption is an unplanned intenuption of placement in a resource home or group care setting that is not the result of progress toward achieving permanency This type of CFTM is indicated whenever there are threats to the stability of a placement as a result of any number of factors, including, but not limited to: medical or physical conditions beyond the monitoring or treatment capacity of the caregiver; the behavior of the child or youth; or changing circumstances of the resource family affecting their willingness or ability to provide for the needs of the child These dismptions of placement are distinct from placement changes which are planned to facilitate permanency, such as reunification with the family; placement into a pre-adoptive home; an exit to the custody of a relative; or placement into a relative's home providing kinship care
The Placement Stability CFTM shall be convened as soon as there are indications that the current placement is at risk with the hope that the placement can be stabilized, if it is still appropriate for the child If the placement cannot or should not be pr eser ved, the team shall identify the best placement for the child and plan how to minimize the trauma that may result from changing placements
When a child or youth must be moved before a Placement Stability CFTM can be arranged, the child and family team shall convene as soon as possible after the move to assess how to stabilize the new placement and support the child, family and caregiver through the adjustment period.
F. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors remain engaged and responsible for quality casework.
G. The goal of "permanent foster care" or "long term foster care" is no longer used, and shall not be used, as a permanency goal. The Brian A Monitor/Technical Assistance Committee (TAC) shall issue recommendations on the use of the goal of Planned Permanent Living Anangement and subsidized guardianship on or before October 31,2007, and those recommendations shall be implemented
23 Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 23 of 58 PageID #: 861

H Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into adult life and live independently

I. Children with an initial goal of return home may also have another concurrently planned permanency goal Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until such time that return home is no longer an option

J

For any child who has a permanency goal of return home for more than 12

months, the case manager, with written approval flam his or her supervisor, shall

include in the record a written explanation justifying the continuation of the goal,

and identifying the additional services necessary or circumstances which must

occur in order to accomplish the goal. No child shall have a permanency goal of

return home for more than 15 months unless there are documented in the record

and approved by the supervisor compelling circumstances and reason to believe

that the child can be returned home within a specified and reasonable time period

K The child's DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child's permanency goal is appropriate or to change it if it is not, to assure that the child's services and placement are appropriate and are meeting the child's specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.

L Whenever the Permanency Plan goal needs to be revised a Permanency Plan Revision CFTM shall be convened. The team shall discuss the reasons for the proposed goal change and consider alternative options for permanency such as guardianship, adoption or the addition ofa concurrent goal. The child's permanency plan shall be reviewed at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child's permanency plan. The permanency plan shall be reviewed and updated if necessary at each of these CFTMs.

M DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit is appropriate to ensure the specific safety and well-being issues involved in the child's case Under this exception, a

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trial home visit may be recommended for less than 90 days but in no case less than 30 days . All cases in which the exception is used shall be forwarded to the Brian A. MonitorlT echnical Assistance Committee (1 AC) for their review .

N A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system The participants will identify all of the services necessary to ensure that the conditions leading to the child's placement into state custody have been addressed, and that the child's safety will be assured, and will identify the services necessary to support the child or youth. DCS shall provide or facilitate access to all services necessary to support the child and family and the trial home visit If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit During any child home visit, the child's case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate

VIII FREEING A CHILD FOR ADOPTION

A The process offieeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as the child's permanency goal becomes adoption, but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate the whereabouts of either parent and for whom no appropriate family member is available to assume custody

B DCS has replaced its process for making legal risk placements with policies and procedures for the "dual licensing" ofresource families as foster parents and adopti ve par ents

C DILIGENT SEARCHES AND CASE REVIEW TIMELINE

I

When a child is placed in state custody, diligent searches for parents and

relatives shall be conducted accor ding to DCS policy by the DCS case

manager prior to the child coming into custody if possible but no later than

30 days after the child comes into the custody of DCS . Compliance with

policy and the results of the diligent search shall be documented in the

case record

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2 In cases in which the parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to proceed immediately to termination of parental rights (TPR) The decision based on this discussion shall be documented in the child's case record

3

The following provisions apply within three (3) months from when a child

enters custody: Diligent searches for parents and relatives shall be

performed and updated again in accordance with DCS policy.

Compliance with policy and the results of the diligent search shall be

documented in the case record If a previously absent parent is located,

reasonable efforts and engagement of that parent shall OCCllI and shall be

evidenced in a permanency plan If a relative is located and the plan is

changed to consider a goal of Exit Custody to Live with Relative, the

relative shall be clearly identified and the requirements to exiting custody

to live with that relative shall be clearly articulated in the permanency

plan

4 The following provisions shall apply when a child has been in custody for six (6) months: Diligent searches for parents and relatives shall be performed and updated in accordance with DCS policy Compliance with policy and the results of the diligent search shall be documented in the case recor d.

a If a previously absent parent is located, reasonable efforts and engagement of that parent shall OCCllI and shall be evidenced in an updated permanency plan. If a relative is located and the plan is changed to consider a goal of Exit Custody to Live with Relative, the relative shall be clearly identified and the requirements to exiting custody to live with that relative shall be clearly articulated in the permanency plan

b The progress on existing permanency plans shall be reviewed with the DCS attorney to accomplish the following: (1) identify any case that is appropriate for TPR at six months and file the TPR; (2) consider cases in which the child is ready to return horne or be placed in the custody of a relative and what legal steps need to be taken to achieve that permanency and what information the DCS attorney will need horn the case manager to proceed legally; and (3) consider cases for possible legal grounds for termination in which the child is not ready to return horne or be placed in the custody of a relative A date certain by which the decision to go forward on a TPR shall be agreed upon and documented in the child's case file

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5 Within nine (9) months of a child entering state custody, the progress on existiug permanency plans shall be reviewed with the DeS attorney for the following:

a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established

b

If the child is not returning home, a timetable for providing

documentation and information to the DeS attorney shall be

established in order to file a TPR

c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the ehild and Family Team shall continue to search for relatives as placement options.

6 If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DeS custody, unless there are compelling reasons, which shall be documented on the child's case file, for not doing so

A review of every child's status shall be done on a quarter ly basis by the regional leadership, including the DeS attorney, to determine whether the processes outlined herein are being followed in each case Any case in which the processes are not being followed shall be restaffed to determine what actions need to be taken to best insure that permanency for that child is best achieved

7 The following series of time flames related to critical activities in the adoption process shall be followed as set forth in DeS policy:

a

Within 90 days of the permanency goal changing to adoption, the

DeS attorney shall file the petition to terminate parental rights,

unless there is a legal impediment to the filing, in which case the

petition shall be filed as soon as possible once the legal

impediment is resolved

b. Des shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR

c

Des shall take all reasonable steps to ensure that the date of the

finalization of the adoption or the date the child achieves

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permanent guardianship shall be within twelve (12) months of full guar dianship

d

All children who have been in custody for 15 months or more with

no TPR petition filed shall be reviewed by the Conunissioner or

his or her designee

8 DCS shall provide and maintain an approval process in which resource parents may be approved simultaneously as both foster and adoptive parents, so that whenever possible and appropriate, replacements can be minimized and resource parents shall be eligible to adopt the children for whom they have been providing foster care. A resource parent who has been providing appropriate foster care for a child for twelve months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption

9

If a child has been in custody 12 months with a dual or sole goal of

adoption and the cunent resource family is not willing or appropriate to

adopt and no adoptive placement has been identified, the Department shall

convene a CFTM to write an Individualized Recmitment Plan and

implement Individualized Recmitment

10 Within 60 days of a child or youth entering full guardianship without a permanent family identified, the following steps will be taken to ensure permanency for the child or youth:

a

The Child and Family Tearn shall submit the updated

Individualized Recmitment Plan to the Finding Our Children

Unconditional Supports (FOCUS) Team

b The FOCUS Team shall review the written Individualized Recmitment Plan This plan shall include time frames, roles and responsibilities

c

The FOCUS Team shall ensure the child or youth is registered on

both REACT and ADOPT US Kids to help match children with

potential families

d The FOCUS Team shall assist the regions with conducting archeological digs, family searches, interviews, and the building of a permanency-focused Child and Family Team as needed and appropr iate.

e

The FOCUS Team shall report and review trends that promote and

prevent permanency for children.

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f

The FOCUS Tearn shall monitor the case progress

g. The FOCUS Team shall explore other options that could increase permanency for children, e g , partnerships with other state adoption programs

II. Once a permanent family has been identified for and with the child or youth, the following steps shall be taken to enSUIe timely permanency.

a. If the cunent reSOUIce family is adopting the child, DCS shall take all reasonable efforts to enSUIe that the adoption shall be completed within 90 days of the final and unappealable TPR provided the COUIt did not issue any additional requests for information and the child has been in the home for the required time period.

b

If the adoptive placement is a new placement, DCS shall take all

reasonable efforts to ensure that the adoption shall be completed

within 60 days after the end of the 6-month placement period

provided the COUIt did not issue any additional requests for

information

12 DCS shall establish and maintain a system ofpost· adoptive placement services, to stabilize and maintain adoptive placements, to which all adoptive families shall be entitled, and about which all resource parents shall be notified at the ear liest appropriate time

IX RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROYAL

A. DCS shall establish and maintain a statewide, regional and local program of reSOUIce parent recruitment, in consultation with the technical assistance committee. Under Tennessee's dual approval process, both foster and adoptive parents are considered to be reSOUIce parents. DCS will enSUIe the availability of a toll free phone number in all regions of the state to ensure access to information concerning the availability of adoption information, training, the approval process and children available for adoption

B DCS will develop and maintain standards for the approval of resource families, to ensure that only appropriate families are approved, and will provide recruitment teams in each region All such approval will be handled within the regions and field offices, which shall be adequately staffed and trained. DCS shall comply with federal law and shall utilize nationally accepted standards for the approval of resource parents, in consultation with the technical assistance committee.. These standards shall apply to all approvals of reSOUIce parents, including those recruited and/or approved through any contract agencies, for any foster child in DCS custody

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e Des shall maintain a statewide and regional plan for resource parent training, in consultation with the technical assistance committee

1 All inquiries flom prospective resource parents subsequent to the date of approval of the Stipulated Modifications to the Settlement Agreement, May 2007, shall be responded to within 7 days after receipt, and home studies shall be completed within 90 days of completing the approved training cuniculum, unless the applicant defaults or refuses to cooperate.

2. Training classes shall be available beginning every 30 days in every region with individualized training available as needed, at times convenient for resource parent applicants

3 Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and Des shall issue annual reports on why resource families leave Des and what steps are necessary to ensure their retention

4

To the extent possible, DeS shall maintain a practice of using existing

resour ce families to recIUit and retain new resour ce families, and shall

maintain a statewide and regional support system for resource families

5. Beginning in fiscal year 2003 (i.e., Tuly 1, 2002), DeS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children

D By July 1, 2001, all resource parent payment room and board rates, including the rates of resource parents under the supervision of private agencies, will at a minimum meet USDA standards and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region. By Tuly 1,2001, relatives who are approved as resource parents shall receive the same resource parent payments as all other resource parents, and all resource payment room and board rates for relatives, including the rates of relative resource parents under the supervision of private agencies, will at a minimum meet USDA standards and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region

E DeS shall provide specialized rates for Des and provider resource parents providing services to special needs children. DeS shall provide and shall ensure that contract agencies provide any specialized training necessary for the care of special needs children. DeS also will continue to contract with private agencies for the provision of therapeutic foster care and medically hagile foster care The details concerning the provision of foster care to special needs children will be presented to the technical assistance committee for consultation, including the issue of establishing minimum resource parent payment rates for categories of

_JO Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 30 of 58 PageID #: 868

special needs children. DCS will follow recommendations flom the technical assistance committee for program modifications
F All potential adoptive families, including resource families caring for a child with special needs who has become legally available for adoption, shall be advised of the availability of the adoption subsidy. This notification shall be documented in the child's record, and the family's access to such subsidy shall be facilitated
G. No resource family shall receive a foster child for placement until the family has received resource parenting training, which training shall be specified in consultation with the technical assistance committee Each resource family shall receive additional annual resource parent training, which shall be specified in consultation with the technical assistance committee DCS will provide for a waiver of approval of the requirements fOlrelatives wishing to care for related children Prior to the waiver of requirements, staff shall have completed a home visit and conducted a local criminal records check In situations where approval fOl placement has been granted under a waiver, all remaining approval requirements, including the relatives' completion of approved foster parent training, shall be completed within 150 days of the placement
H In consultation with the technical assistance committee, DCS shall develop and implement a statewide program to ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families fOl whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity
X STATEWIDE INFORMATION SYSTEM
A DeS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. The state-wide computerized information system shall ensure data integrity and user accountability The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incoll ect 01 invalid data
B This system shall include uniform data presentation including but not limited to AFCARS elements flom DCS for all children in the plaintiff class This system shall be audited periodically to ensure the accuracy and validity of the data in the system. This system shall provide an immediately visible "audit trail" to the data base administJators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity This system shall be capable of providing system-wide reports. Within 6 months of the signing of this Settlement Agreement, DCS, with the direct involvement and approval of the technical assistance committee, and with the assistance of any management information systems expert(s) which the technical assistance committee determines appropriate, if any, shall undertake and complete an evaluation of the
31 Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 31 of 58 PageID #: 869

following: (1) the data elements and uniformity of data presentation from DCS for children in the plaintiff class; (2) the audit processes of the data in the system utilized by DCS's current management information systems for children in the plaintiff class; (3) the "audit trail" in the system utilized by DCS's cunent management information systems for children in the plaintiff class; and (4) the system-wide reports that DCS's management information system is cunently able to provide for children in the plaintiff class. The technical assistance committee shall make recommendations including timetables for implementation upon its review of the evaluation, which DCS shall implement

C An intensive data clean- up plOcess shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system The data shall be audited no less frequently than every 12 months after the signing of this Settlement Agreement to ensure its ongoing accuracy

XI QUALITY ASSURANCE

A No later than January 1,2002, DeS shall develop and implement a statewide quality assurance pIOgram, in consultation with and subject to the appIOval of the technical assistance committee, which shall be directed by a quality assurance unit. The quality assurance unit's functions will coordinate with and complement the independent MonitOI' s functions and the unit is intended to become a permanent unit of DCS The quality assurance unit shall assure that, in addition to extemal case file reviews and monitoring, there is an internal method to perform special administrative case record reviews The quality assurance unit shall track, coordinate and integrate all DCS quality assurance activities . The quality assurance unit shall pIOvide critical attention to the follow-up needed to impr ove services and outcomes

B This unit shall provide regular, periodic repOIts and shall also conduct specialized case record reviews on issues addressed by this Settlement Agreement, as well as other issues affecting the care of children

e

This unit shall be directed by a person with appropriate qualifications The

director of the quality assurance unit shall report directly to the Commissioner of

DCS. The unit shall be adequately staffed and shall receive special training to

fulfill its responsibilities

D All reports pIOvided by the quality assurance unit shall be public record, unless disclosure is prohibited by law. It is the intent of the parties to disclose all information that is not individually identifiable

E In addition to reviews otherwise required, Des shall establish a process for conducting special administrative case recOId reviews, in consultation with the technical assistance committee

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I

The purpose of the reviews is to provide necessary information to DeS

management and to determine on an ongoing basis whether DeS is

following the provisions of this Settlement Agreement, DeS policy and

good social work practice

2 The reviews will include specific processes and procedures for identifying workers or supervisors who, as a result of a quality assurance review, are in need of additional training, reassignment, or for whom termination may be appropr iate.

3 At a minimum, the quality assurance unit shall, once every twelve months, review a statistically significant number of cases horn each region in the state These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class As part of this minimum annual case record review, the quality assurance unit, central office and other designated staff, in consultation and with the approval of the technical assistance committee, shall develop a measure of appropriate and professional decision-making, concerning the care, protection, supervision, planning and provision of services and permanency for children in the class This measur e shall be utilized in conjunction with the case file reviews to measure DeS's performance.

4

If significant problems are identified within a region, the quality assurance

unit shall review a statistically valid sample of cases within each

supervisory unit, to identify whether particular units have particular

problems and, if necessary, whether administrative action is necessary

5

Beginning July 1,2002, the quality assurance unit will oversee special

administrative reviews. The reviews will include the following categories:

a

All cases in which there have been three or more reports of neglect

or abuse concerning a particular caretaker for a particular child in

the plaintiff class

b

All cases in which a child in the plaintiff class is the subject of

substantiated or indicated abuse or neglect.

c All cases within the preceding twelve months in which a child has been placed in three different placements excluding a return horne.

d. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days

Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 33 of 58 PageID #: 871

e

All cases in which a child has had a permanency goal of return

home for more than 24 months

f

All cases in which a child has had a permanency goal of adoption

for more than one year and has not been placed in an adoptive

home

g

All cases in which a child has retUlned home and has reentered

care more than twice and has a plan of return home

h. All cases in which the date for the accomplishment of the permanency goal of reunification has been exceeded by 12 months

6 The parties to this Settlement Agreement are concerned with the national problem of the overrepresentation of African American children in child welfare systems. The parties to this Settlement Agreement are committed to ensuring that there is no disparate treatment of, or disparate impact on, African American children in the plaintiff class. Within 90 days of the date of this Settlement Agreement, DCS shall retain an independent expert, jointly agreed to by the parties (or, if the parties cannot agree then appointed by the technical assistance committee), to conduct a statewide evaluation of the Tennessee foster care program The evaluation shall determine whether there are any disparities concerning the placement, services and treatment provided to AfIican American children in foster care and their families, the recruitment and retention of foster and adoptive families, as well as the foster parent payments provided to foster parents for the care of Afiican American childr en in foster care. The evaluation and a report of its findings and recommendations shall be presented to the Commissioner and the Monitor no later than 12 months hom the date the expert is retained. The report shall include a plan and timetables within which the recommendations shall be implemented, beginning immediately after the completion of the evaluation DCS shall implement the recommendations in the report

7 The quality aSSUlance unit shall issue reports on a periodic basis, at least every six months These reports shall be presented to the Commissioner of DCS and to the Monitor In the event that the DCS Commissioner does not take appropriate action on any of the findings in the quality assurance report, the COUlt Monitor may recommend such action, or plaintiffs may seek an or der hom the court dir ecting that fUlther action be taken, pursuant to the enforcement procedUles set out in this Settlement Agreement

F Within 90 days after the date of this Settlement Agreement, DCS, in conjunction with designated field and central office staff, shall begin the specialized review of all foster children in DCS custody who entered DCS custody prior to October 1,

14
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1998. The permanency plan for each child shall be reviewed and a determination made regarding the appropriateness of the goal, the barriers to permanency and the services in place to move the child to permanency This review will include interviews including relevant personnel and an individualized written corrective action plan including, if necessary, a new permanency plan These special reviews shall occur at least once every tluee months until permanency is achieved for each child.

G Within 90 days after the entry of this Settlement Agreement, DCS shall have a process in place under which it shall report on and immediately take all necessary action on the status of children in the following categories:

I. Children in one or more emergency, temporary or shelter facilities for more than 45 days within the last 12 months;

2

Foster children in DCS physical or legal custody who are currently or who

have been placed in jail, detention or other correctional facilities and who

have not been arrested on a delinquency charge, within the past 12

months

3 Children in foster homes or facilities that exceed their licensed capacities, or children in foster homes or facilities that do not have a valid license.

4

Children with a permanency goal of retum home that has remained in

effect for more than 22 months

5

Children who do not have a permanency plan.

6

Children for whom the permanency goal has not been updated for more

than 12 months

7 Children with a sole permanency planning goal of adoption for more than 12 months and for whom a petition to terminate parental rights has not been filed

XII. SUPERVISION OF CONTRACT AGENCIES

A All contract agencies which provide placements or services to children in the plaintiff class shall only do so pursuant to annual performance··based contracts issued by DCS. Such contracts shall be developed by DCS within 90 days after the approval of this Settlement Agreement These contracts shall be entered into in the next contracting cycle

B DCS shall only contract with those agencies that meet the provisions of this Settlement Agreement that specifically apply to those agencies and that meet state standards goveming the operation of child care facilities These state standards

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shall reflect reasonable professional standards. DeS shall not contract with any agency that has not been licensed by the State to provide placements for children in the plaintiff class.
e. DeS shall expand the staff of the cunent licensing unit to allow fOl increased monitoring and oversight responsibilities of the contract agencies. All contract agencies providing placements fOl children in the plaintiff class shall be inspected annually by DeS licensing staff in an unannounced visit, and DeS shall determine in a written report whether the agency complies with state licensing standards The licensing unit shall collabOlate with the DeS quality assUlance unit and the central office resource management unit to determine agency compliance with the terms of this Settlement Agreement
D Alleged abuse 01 neglect of children placed with a contract agency must be repOlted by the agency to the Des child protective services unit in the county in which the facility is located. Additionally, alleged abuse 01 neglect concerning children placed with any contract agency shall be repOlted to the central office resource management unit and the quality assUlance unit DeS shall incOlporate these repOlts, and their findings, into the annual review of each contract agency. DeS will evaluate carefully those repOlts and consider prior conective actions, the history of the agency and determine if there are serious problems that place children at serious risk of harm and prevent further contracts hom being issued.
XIII FINANCIAL DEVELOPMENT
A DeS shall develop and implement policies and procedures by which it can maximize funds available to it through Titles IV·B and IV-E of the Adoption Assistance and Child Welfare Act of 1980 The technical assistance committee shall evaluate the work of any cUlrent consultants retained by DCS to develop and implement policies and procedures under the terms of this provision, and shall make recommendations on the continued use of the CUI rent consultants andlOl the use of other consultants The technical assistance committee shall also evaluate the CUIrent policies and procedures in place and in development, and make any recommendations to modify these policies and procedures DCS shall implement any recommendations made by the technical assistance committee
B All funds remitted fOl children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving the children in the class covered by this Settlement Agreement It is the intent of the State that dollars committed to DCS fOl the provision of services and resoUlces to benefit children in the class and children at risk of entering the class shall not be decreased if effOlts to maximize federal dollars result in additional federal funding. Des shall establish a mechanism acceptable to the MonitOl fOl reporting the budgeting of both federal and state dollars Nothing in this
3(j
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provision shall reduce the defendants' financial obligations to comply with the terms of this Settlement Agreement
C FINANCIAL RECORD KEEPING
I. When a child in the plaintiff class is removed from a DCS family foster OI adoptive home, the DCS case manager shall, within 7 days, enter this status change and update placement infOImation directly into the Children's Plan Financial InfOImation System (ChipFins) or any comparable database used fOI this pUlpose.
2 DCS shall maintain an adequate system for identifying and collecting overpayments to foster car e and adoption assistance parents
3. DCS shall maintain an adequate system relating to cash receipting procedUles
XIV TECHNICAL ASSISTANCE COMMITTEE
A A Technical Assistance Committee of five neutral experts in the child welfare field has been selected to assist the state in meaningful implementation of the requirements of this Settlement Agreement The technical assistance committee will have the ability to consult and involve other experts as necessary John Mattingly, of the Annie E. Casey Foundation, has agreed to convene the technical assistance committee and provide guidance and leadership, as he is available Should any of the five technical assistance committee members become unavailable, the remaining technical assistance committee members will be authOIized, but not required, to select replacement neutral child welfare experts to serve on the technical assistance committee Appointment of additional technical assistance committee members shall require the consent of the parties and shall be made in a manner appropriate to meet DCS' evolving technical assistance needs. In no event shall the number of standing technical assistance committee members be less than foUl OI more than six
B The role of the technical assistance committee is to advise DCS on the child welfare policy, management and practice issues delineated in this Settlement Agr eement, as well as other issues which DCS OI the technical assistance committee agree to consult on It is understood by the parties and the technical assistance committee that the primary function of the technical assistance committee is advisory; however, DCS shall implement the technical assistance committee's recommendations in all areas so specified in this Settlement Agreement
C When time frames are specified fOI the completion of an evaluation or review by DCS, the technical assistance committee is authorized, after consultation with both parties, to give time-limited extensions for completion of the evaluation OI
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review The time flames stipulated for implementation of any technical assistance committee recommendations in this Settlement Agreement shall remain in place, and while the technical assistance committee is not authorized to extend implementation time periods for recommendations under this Settlement Agreement, the technical assistance committee is authmized to advise the parties when extensions may be needed
XV MONITORING
A DCS shall enter into a contract consistent with the terms of this Settlement Agreement with an independent and neutral party who will monitor compliance with the terms of this Settlement Agreement The TAC will function as the independent monitOl, in the place of Sheila Agneil The TAC shall continue in the role of independent monitor at least for the duration of the redefined Period III, plus an additional three month Continuation Period PriO! to the conclusion of the Continuation Period, the parties, in consultation with the TAC, will determine whether it is advisable for the TAC to continue in the role of independent monitOl following the expiration of the Continuation Period or whether a separate independent monitOl should be retained to fulfill the responsibilities described in this section of the Settlement Agreement The TAC shall repOlt on performance under the entire Settlement Agreement after the end of the redefined Period III The TAC shall also repOlt on perfOlmance dUling the redefined Period III
B The state shall provide to the independent Monitor all information necessary to fulfill the Monitor's obligations, including access to documents and personnel, and shall where appropriate facilitate and enSUle access to documents and personnel from the contract agencies involved in the care of the plaintiff class members The State agrees to provide the TAe with free access to all individuals within the Department, any successor agencies, and other persons within the Executive Branch, as the TAC deems necessary; to assist the TAC in gaining flee access to other stakeholders in the child welfare system (including but not limited to the staff of contract providers); and to provide the TAC with flee access to all documents and data it deems relevant to its work. The members of the TAC have agreed to respect the confidentiality of all information related to individually identifiable clients of DCS, subject to applicable law. The members of the TAC have fUlther agreed to respect the confidentiality of any documents that are in draft form 01 otherwise privileged.
C The technical assistance committee and the Monitor will, within their respective responsibilities, wOlk together and share infOlmation so they can remain informed about the operations of the agency DUling the initial months of this Settlement Agreement, DCS will coordinate an orientation program for the technical assistance committee and the Monitm . DCS will provide the Olientation to the technical assistance committee and the MonitOl concUlrently
38
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D The Monitor shall have the authority to requiI e reports on the status of the implementation of any and all requirements of this Settlement Agreement, the status of foster children in DCS custody, and compliance with this Settlement Agreement
E In order to avoid duplication and to build capacity within the agency, the MonitO! will look first to DCS data and to data and reports created and maintained by the DCS Quality Assurance Unit However, the MonitO! will have the authO!ity to require reports and to create new reports conceming the status of foster children in DCS custody and conceming compliance with this Settlement Agreement, to the extent the Monitor deems necessary
F. Plaintiffs shall have access flOm the Monitor to all information made available to the Monitor, and to all other information necessary to ensure compliance and enforcement of this Settlement Agreement If plaintiffs become aware of information related to possible non-compliance about which they wish to investigate, plaintiffs shall notify the Monitor of the matter as part of plaintiffs' investigation, without any limitation to plaintiffs' right to access all information necessary to ensure compliance and enforcement of this Settlement Agreement Plaintiffs shall not initiate case file reviews unless necessary in connection with a motion for non-compliance or enforcement
G All reports made available pursuant to this Settlement Agreement shall be public information, plOvided that if any report contains, or is requested by the Monitor to contain, individually identifiable information, such individually identifiable information shall not be made public All formal reports of the TAC, and the attachments thereto, will be public documents, except that the TAC agrees that any individually identifiable information (as that term is understood under Tennessee law) and any other confidential information plOtected from disclosure by law, including without limitation any plOtected health information and/or individually identifiable health information (as those terms are understood under the Health Insurance Portability and Accountability Act of 1998 (HIPAA)) will be redacted or otherwise removed from any public report
H Defendants shall continue to fund the TAC' s monitoring and technical assistance functions The Annie E Casey Foundation ("the Foundation") has supported funding of the TAC since the TAC' s inception. The parties expect the Foundation will continue funding through calendar year 2008 at a reduced leveL Defendants shall make up any such reductions in funding The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
L The TAC shall, prior to the implementation of the Brian A implementation plan (Implementation Plan), plOvide monitoring necessary to measure defendants' compliance with the Settlement Agreement This shall include a case record review, to be initiated as soon as practicable, plOvided however that the TAC, in
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consultation with the plaintiffs, shall design both the size and scope of the case record review so as to measure those Settlement Agreement provisions that have a significant impact on the plaintiff class members . In addition, the TAC shall receive and to the extent appropriate analyze data and reports flam the State that have previously been provided to the Monitor

J

The TAC shall monitor the defendants' performance under the Settlement

Agreement and shall also monitor the extent to which the defendants are

implementing the Implementation Plan The TAC shall develop a monitoring

plan no later than 30 days after the finalization of the Implementation Plan

K The intent of the parties is for the Monitor to develop a plan that transfers the primary monitoring function to the Quality Assurance Unit after the termination of this Settlement Agreement

XVI OUTCOME AND PERFORMANCE MEASURES

This section lists the child welfare outcomes and performance indicators related to practice improvements Performance targets are listed for three time periods for the child welfare outcomes and the practice performance indicators Period 1 covers 18 months beginning on September 1,2001. Period II began on March 1, 2003, and ended on November 31, 2005, and Period III began on December 1,2005, and ends on June 30, 2008

A Child Welfare Outcomes

The child welfare outcomes will be measured using a combination of longitudinal data analysis and point in time data analysis. The Monitor shall use appropriate and adequate means to determine whether defendants have achieved the following levels of compliance with the following requirements, by measuring defendants' achievement of these requirements as soon as possible after the time periods specified

1 Reunification

Period I

At least 70% of children entering care after September 1, 2001, who are reunified with their parents or caretakers at the time of discharge from custody, shall be reunified within 12 months of the latest removal date

Period II

At least 75% of children entering care after September 1,2001, who are reunified with their parents or caretakers at the time of discharge from custody, shall be reunified within 12 months of the latest removal date

40
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Of the remaining children (i.e. those who are not reunified with their parents or caretakers at the time of discharge flom custody within 12 months of the latest removal date), 60 % shall be reunified within 24 months of the latest removal date

Period III

At least 80% of children entering care after September 1,2001, who are reunified with their parents or caretakers at the time of discharge flam custody, shall be reunified within 12 months of the latest removal date

Of the remaining children (i e. those who are not reunified with their parents or caretakers at the time of discharge flom custody within 12 months of the latest removal date), 75 % shall be reunified within 24 months of the latest removal date

2

Adoption Finalization (point in time measure) Adoptive placement is

defined as the date the adoption contract is signed

Period I

At least 70% of adoptions that become final within the reporting period shall have become final within 6 months of the adoptive placement

Period II

At least 80% of adoptions that become final within the reporting period shall have become final within 6 months of the adoptive placement

Period III

For children whose parental rights have been terminated or sunendered dUling the reporting period (ie, those in full guardianship), 75% shall have their adoption finalized or permanent guardianship transtelled within 12 months of being in full guardianship.

3

Number of placements (measUles in this section apply to children in care

at any time dUling the reporting period and children still in care at the end

of the reporting period) Placements made prior to September 1,2001,

shall not be counted in this measure. For children requiring emergency

hospitalization who return to their immediately prior placement, that

return shall not count as an additional placement

41 Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 41 of 58 PageID #: 879

Pedod I

At least 60% of children in CaIe at any time during the repOlting period shall have had two or fewer placements not including temporary breaks in placement fm children who run away or require emergency hospitalization not exceeding 10 days

Period II

At least 75% of children in care at any time during the repOlting period shall have had two 01 fewer placements not including tempmary breaks in placement fm children who run away 01 require emergency hospitalization not exceeding 10 days

Pedod III

At least 90% of children in care at any time during the repOlting period shall have had two or fewer placements within the previous 12 months in custody, not including tempOlaIY breaks in placement fm children who run away 01 require emergency hospitalization not exceeding 30 days

At least 85% of children in care at any time during the repOlting period shall have had two or fewer placements within the previous 24 months in custody, not including tempmary breaks in placement for children who run away or require emergency hospitalization not exceeding 30 days

4

Length of time in placement This measure shall include all children who

entered care after October 1, 1998 and either left care at any time during

the reporting period 01 are still in CaIe at the end of the reporting period

Measurement shall exclude children still in care at the end of the repOlting

period who are in a long term relative placement for whom a long term

placement agreement has been signed, and shall exclude children in

permanent foster care.

Period I

At least 60% of children in placement shall have been in placement fm two years or less.

No more than 25% of children in placement shall have been in placement for between two and thr ee years

No mOle than 15% of children in placement shall have been in placement for over three years

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Period II
At least 70% of children in placement shall have been in placement for two years or less
No more than 18% of the children in placement shall have been in placement for between two and three years
No more than 12% of the children in placement shall have been in placement for more than three years
Period III
At least 75% of the children in placement shall have been in placement for two years or less
No more than 20% of the children in placement shall have been in placement for between 2 and 3 years
No more than 5% of the children in placement shall have been in placement for more than 3 years
5 Reentry into placement
Period I
Measures in this section apply to children who are discharged from foster care at any time up to the end of the reporting period. For each child, reentry shall be determined from the date of discharge for a period of 12 months . The overall performance percentage of compliance on this measur e for this per iod shall be calculated 12 months after the end of Period 1.
No more than 8% of the children who are discharged hom foster care at any time up to the end of the reporting period shall reenter custody within 12 months after the discharge date from the prior custody episode
Period II
Measures in this section apply to children discharged from foster care at any time during calendar year 2005 (January 1, 2005 through and including December 31, 2005) For each child, reentry shall be determined flam the date of discharge for a period of 12 months
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No more than 8% of the children who are discharged from foster care at any time during calendar year 2005 shall reenter custody within 12 months of discharge from the prior custody episode.

Peliod III

Measures in this section apply to children who are discharged flom foster care at any time during the fiscal year 2007 (July 1, 2006 through and including June 30, 2007). For each child, reentry shall be determined from the date of discharge for a period of 12 months.

No more than 5% of children who are discharged flom foster care at any time during fiscal year 2007 shall reenter custody within 12 months after the discharge date flom the plior custody episode.

6

Adoptive placement disruption (defined for Periods I and II as occurring

between the signing of the adoption contract and finalization).. Measures

in this section apply to children who were placed in an adoptive home

during the reporting period.

Period I

No more than 10% of adoptive placements that occulled in the reporting period shall have disrupted

Period II

No more than 6% of adoptive placements that occurred in the reporting period shall have disrupted

Period III

Adoption placement disruption for this reporting period is defined as occuIIing between the signing of an "intent to adopt" agreement and finalization. Measures for this reporting period apply to children who were placed in an adoptive home during the reporting period

No more than 5% of adoptive placements that occurred in the reporting period shall have disrupted

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7 Achievement measmes upon discharge (this measme shall exclude children on runaway status at the time they reach the age of 18)
Period I
At least 80% of the children who are discharged flom foster care dming the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned aGED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, cunently enrolled in vocational training, or employed full time
Period II
At least 85% of the children who are discharged flam foster care during the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned aGED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, currently enrolled in vocational training, or employed full time.
Period III
At least 90% of the children who are discharged from foster care during the reporting period because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned aGED, graduated from high school, enrolled in high school or college or alternative approved educational program for special needs children, currently enrolled in vocational training, or employed full time.
B Performance Indicators / Practice
The Monitor shall use appropriate and adequate means to determine whether defendants have achieved the following levels of compliance with the following requirements, by measuring defendants' achievement of these requirements as soon as possible after the time periods specified. The compliance levels articulated in this section shall be enforceable at the levels indicated at the end of periods one, two, and three respectively. However, after March 1,2002, plaintiffs may seek enforcement of any of these standards in this section at any time upon a showing of defendants' gross deviation flam any of these standards
1 Parent-child visiting
a.. The standard:
For children in the plaintiff class with a goal of reunification, par ent-child visiting shall mean a face·to-face visit with one or
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both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record). The visit shall take place in the child's home ifpossible or in as homelike a setting as possible, or for longer as otherwise required by the child's permanency plan and reasonable professional standards This standard does not apply to situations in which there is a court or der prohibiting visitation or limiting visitation to less frequently than once every month. The child's case manager may consider the wishes of a child (gener ally older adolescents) and document in the case file any deviation from usual visitation requirements
b. Measurement periods / compliance levels This measure applies to children with a goal of reunification.
Period I
20% of all class members with a goal of reunification shall be visited at least once every two weeks
For the remaining class members with a goal of reunification who are not visited once every two weeks, at least 75% shall be visited once a month
Period II
30% of all class members with a goal of reunification shall be visited at least once every two weeks
For the remaining class members with a goal of reunification who are not visited once every two weeks, at least 70% shall be visited once a month .
Period III
50% of all class members with a goal of reunification shall be visited at least twice per month.
For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month .
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2

Sibling visiting

a

The standard:

For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available The visits shall take place in the parent's home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occnr as frequently as is necessary and appropriate to facilitate sibling relationships but no less flequently than once each month The visiting shall take place for no less than one honr each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child's case record), or more as otherwise required by the child's permanency plan and reasonable professional standards.. This standard does not apply to situations when there is a conrt order prohibiting visitation or limiting visitation to less frequently than once every two months

b. Measurement periods I compliance levels

Period I

75% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month.

Of the remaining children in the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 85% shall visit at least once every two months

Period II

85% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month

Of the remaining childr en in the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 90% shall visit at least once every two months

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Period III

90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month

Of the remaining children in the class in placement who have siblings with whom they are not living and with whom they did not visit at least once a month, at least 90% shall visit at least once every two months

3

Placing siblings together

a

The standard:

Siblings who enter placement at or near the same time shall be placed together, unless doing so is harmful to one or more of the siblings, one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together If a sibling group is separated at the initial placement, the case manager shall make immediate efforts to locate or recruit a family in whose home the siblings can be reunited. These efforts will be documented and maintained in the case file

b

Measurement period! compliance levels

Period I

At least 70% of all siblings who entered placement dming the reporting period shall be placed together in the same foster home or other placement

Period II

At least 80% of all siblings who entered placement dming the reporting period shall be placed together in the same foster home or other placement

Period III

At least 85% of all siblings who entered placement dming the reporting period shall be placed together in the same foster home or other placement

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4

Filing a petition to terminate parental rights

a.. The standard:

The pIOcess of fleeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as the child's sole permanency goal becomes adoption, but in no event later than is required by federal law The adoption process shall begin immediately for all children for whom a diligent search has failed to locate the whereabouts of either parent and for whom no appIOpriate family member is available to assume custody.

b

Measurement period! compliance levels

Period I

At least 75% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when goal was changed to adoption

Period II

At least 60% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 3 months of when goal was changed to adoption

Of the remaining children in the class with a sole permanency goal of adoption during the reporting period who did not have a petition to terminate par ental rights filed within 3 months, at least 50% shall have a petition for termination of parental rights filed within 6 months of when the goal was changed to adoption.

Period III

At least 65% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 3 months of when goal was changed to adoption.

Of the remaining children in the class with a sole permanency goal of adoption during the reporting per iod who did not have a petition to terminate parental rights filed within 3 months, at least 75% shall have a petition for termination of parental rights filed within 6 months of when the goal was changed to adoption

49 Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 49 of 58 PageID #: 887

5.

Placement in an adoptive home

a

The standard:

Once there has been a termination of parental rights for a child in the plaintiff class, an adoptive home shall be identified and an adoption contract shall be signed for that child as soon as possible

b

Measurement period! compliance levels

Period I

At least 75% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an adoption contract signed within 12 months of the termination of parental rights

Period II

At least 45% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an adoption contr act signed within 6 months of the termination of parental rights

Of the remaining children in the class who have been freed for adoption during the reporting period (for whom termination of parental rights was obtained) who have not had an adoptive home identified and an adoption contract signed within 6 months, at least 70% shall have an adoptive home identified and an adoption contract signed within 12 months of the termination of parental rights.

Period III

The standard for this reporting period: Once there has been a termination of parental rights or surrender (i. e, full guardianship) for a child in the plaintiff class, an adoptive home shall be identified and an "intent to adopt" agreement signed as soon as possible

At least 65% of children freed for adoption during the reporting period (for whom termination of parental rights was obtained) shall have an adoptive home identified and an "intent to adopt" agreement signed within 6 months offull guar dianship

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Of the remaining children in the class who have been heed fOl adoption dming the repOlting period (fOl whom termination of parental rights was obtained) who have not had an adoptive home identified and an "intent to adopt" agreement signed within 6 months, at least 85% shall have an adoptive home identified and an "intent to adopt" agreement signed within 12 months of full guardianship

6

Goal of permanent Ol long term foster care

a

The standard:

No child shall be assigned a permanency goal of permanent foster care unless a) the child is at least 15 years old; b) DeS has made every reasonable effOlt, documented in the record, to retum the child home, to place the child with appropriate family members or to place the child fOl adoption; and c) the per son to whom DeS proposes to assign permanent car etaker status has demonstrated a commitment to assuming long-term responsibility fOl the child

b. Measmement period! compliance levels

Period I

No more than 10% of children in the plaintiff class shall have a goal of permanent or long term foster care

Period II

No more than 8% of children in the plaintiff class shall have a goal of permanent or long term foster care.

Period III

No mOle that 5% of children in the plaintiff class shall have a goal of permanent or long-term foster care.

7.

In-region placements

a

The standard:

All children shall be placed within their own region or within a 75 mile radius of the home through which the child entered custody, unless the child's needs are so exceptional that they cannot be met by a family Ol facility within the region, Ol the child needs replacement and the child's permanency goal is to be returned to his

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parents who at that time reside out of the region or the child is to be placed with a relative out of the region, under which circumstances the regional administrator or the team coordinator shall be specifically required to so certify in writing, based on his or her own examination of the circumstances

b Measurement period! compliance levels

Period I

At least 70% of children in the class shall be placed within the region f10m which they entered placement or within a 75 mile radius ofthe home from which the child entered custody.

Period II

At least 80% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody

Period III

At least 85% of children in the class shall be placed within the region flom which they entered placement or within a 75 mile radius of the home from which the child entered custody

C. Performance Indicators Related to Administration

Des shall complete the following by the dates provided below

1 On or before July 1,2001, DeS shall designate a Director of Training as contemplated in section V E

2

On or before October 1, 2001, DeS shall designate a Director of Quality

Assurance as contemplated in section XI e

3

On or before January 1, 2002, DeS shall submit to the technical assistance

committee an employee incentive and stipend plan as described in section
Vc.

4 On or before September 1,2001, DeS shall submit to the technical assistance committee a plan for making legal risk placements as described in section VIII B .

5

On or before January 1, 2002, DeS shall install a toll flee number

designated to provide adoption information as described in section IX.A

52
Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 52 of 58 PageID #: 890

6. On OI before July 1,2001, every region will submit an adoptive and foster parent recruitment plan as described in section IXA.

XVII MODIFICATION

This Settlement Agreement may be modified on the consent of the parties OI upon appropriate motion filed with the court
XVIIl. ENFORCEMENT, TERMINATION AND EXIT

A General Principles Guiding EnfOIcement

1. All of the provisions in this Settlement Agreement are separately and independently enforceable, as set forth in this Settlement Agreement. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this Settlement Agreement, OI fOI violations relating solely to an individual child (other than an individual child who is a named plaintiff in this litigation)

2 Unless otherwise specifically stated in a provision of this Settlement Agreement, all provisions of this Settlement Agreement shall apply to all children in the class, regardless of whether they are in a DCS or contract agency placement, and regardless of the type of placement

3. Nothing in this Settlement Agreement shall limit the right of the plaintiffs to seek flom the court appropriate relief to remedy any violations of the Settlement Agreement
B Dispute Resolution

I

Solely with regard to the provisions contained in Section XVI(A) above

regarding outcome measures, the following enforcement process will

apply: If DCS fails to meet the perfOImance standard fOI any outcome

measure during or at the end of the specified compliance period, as

determined by the Monitor, priOI to seeking judicial relief, plaintiffs will

submit the non-compliance issue to the technical assistance committee.

Within 45 days of that submission, DCS, after consultation with the

technical assistance committee and plaintiffs, will present a conective

action plan designed to enable DCS to meet the periOImance standard

within a specified time period The technical assistance committee will

review the plan and recommend any changes it deems necessary.. DCS

shall revise the plan based on the recommendations of the technical

assistance committee Upon the technical assistance committee's final

approval of the plan, the parties agree to be bound by the conective action

plan. Defendants' failure to adopt and implement the conective action

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plan within the time period specified constitutes prima facie evidence of noncompliance, for which plaintiffs may seek appropriate legal remedies.

2 With regard to all provisions of this Settlement Agreement, with the exception of the provisions in Section XVI (A) regarding outcome measures for which the enforcement process is set out above in XVIII (B)(l), the following enforcement process shall apply:

a

Prior to seeking judicial remedies for non-compliance, plaintiffs

shall notify the defendants in writing if they believe defendants are

out of compliance with any provisions of this Settlement

Agreement

b

The parties shall engage in a 30 day period of good faith

negotiations in an effort to resolve the non-compliance issues and

shall utilize the Monitor to facilitate this process

c. Plaintiffs may bypass the dispute resolution provisions of this
Settlement Agreement and seek immediate relief in court if
plaintiffs clearly demonstrate that Des action or inaction in
contravention of this Settlement Agreement caused or is likely to
cause an immediate and substantial risk of serious harm to children
in the class

d. After the completion of Period II, (36 months flom the signing of the Settlement Agreement), if defendants believe that they are in substantial compliance with specific provisions of this Settlement Agreement, they may seek a diminution of monitoring of any or all of those specific provisions from the Monitor. If plaintiffs do not oppose that application, the Monitor may diminish monitoring of those provisions, but only to a level sufficient to determine whether compliance continues for the duration of this Settlement Agreement If plaintiffs oppose the diminution of monitoring, plaintiffs shall seek a finding of non-compliance with the relevant provisions from the court, and the court shall determine whether non-compliance exists If the court finds non-compliance, the monitoring of the relevant provisions shall not be diminished If the court finds compliance, monitoring shall be diminished as determined by the Monitor However, even in the event that monitoIing of any particular provision is diminished, pur suant to this paragraph, based on an agreed··upon or court-determined finding of substantial compliance, court jurisdiction to enforce compliance with that and all provisions of this Settlement Agreement shall continue for the duration of the entire Settlement Agreement

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C I ermination and Exit
1 Only after the completion of Period III as defined in Section XVI, Defendants may seek the termination of courtjurisdiction over any specific provision in this Settlement Agreement, as follows:
a. Defendants may seek the termination of court jurisdiction over any specific provision of this Settlement Agreement if the Monitor finds substantial compliance with the provision at the end of Period III If plaintiffs do not agr ee that court jurisdiction should be terminated, defendants may seek a ruling terminating court jurisdiction over that provision flom the court. The parties intend that the court shall grant termination of jurisdiction over the provision only if (1) defendants can prove substantial compliance with the provision; AND (2) if plaintiffs fail to demonstrate that the provision is directly related to defendants' achievement of compliance with other provisions of this Settlement Agreement
b. If the Monitor finds noncompliance with the provision at the end of Period III, and the Monitor subsequently finds sustained compliance with the provision for two consecutive six-month periods after the end of Period III, defendants may seek a ruling terminating court jurisdiction over that provision flom the court The parties intend that the court shall grant termination of jurisdiction over the provision only if defendants can prove substantial compliance with the provision AND if plaintiffs fail to demonstr ate that the provision is directly related to defendants' achievement of compliance with other provisions
2. This Settlement Agreement shall remain in full force and effect until at least the conclusion of Period IlL Following the conclusion of Period III, and after the Monitor submits a report on compliance levels after Period III, the defendants may seek a ruling flom the court for the filiI termination of court jurisdiction over this Settlement Agreement based on achievement of the compliance levels specified, so long as there are no pending noncompliance motions and no other pending remedial court order s based on non-compliance with any provisions of this Settlement Agreement, unless plaintiffs can demonstrate that continued court jurisdiction is necessary to accomplish the purposes of this Settlement Agreement
XIX NAMED PLAINTIFFS
A The Commissioner of DCS shall monitor the individual cases of the named plaintiffs in this action, to ensure that all necessary and appropriate plans are
Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 55 of 58 PageID #: 893

developed and implemented and that all necessary placements and services are provided
B The parties shall attempt to agree on necessary services and plans for the named plaintiffs, within 30 days after the signing of this Settlement Agreement
C The Monitor shall begin overseeing the cases of the named plaintiffs within 45 days after the signing of this Settlement Agreement and continuing for so long as the named plaintiffs remain in defendants' custody If the parties cannot agree on any aspect of the care of any of the named plaintiffs, including placements, services, treatment or plans, the Monitor shall have final decision-making authority The Monitor shall have the authority to consult with the technical assistance committee on particular issues pertaining to the named plaintiffs, as necessary
D The Commissioner of DCS shall ensure that plaintiffs' counsel receive documents and reports every 60 days concerning the status of the named plaintiffs, services that have been provided, and implementation of plans, so long as the named plaintiffs remain in defendants' custody Plaintiffs' counsel shall receive immediate notification of any significant events or developments concerning the named plaintiffs, including but not limited to any change in placement, services, permanency goal or permanency plans; any reports of any incident of abuse or neglect involving any of the named plaintiffs or occuning at the placement where any of the named plaintiffs are currently placed; any serious incident (requiring generation of a serious incident report as defined in DCS policy as it exists on the date of the signing of this Settlement Agreement) involving any of the named plaintiffs or occurring at the placement where any of the named plaintiffs are placed
XX ATIORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this Settlement Agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 USC §1988

DATED:

May ll., 2007
Nashville, TN

SO ORDERED:

HONORABLE T'oDD J CAMPBELL, U.S DJ

DATE

-56
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APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Marcia Robinson LowlY MARCIA ROBINSON LOWRY (pro hac vice) IRA P LUSTBADER (pro hac vice) CHILDREN'S RIGHTS, INc.. 330 Seventh Avenue, 4th FloOl New York, NY 10001 (212) 683-2210
/s/ David L. Raybin_ _ _ _ _ _ __ DAVID L RAYBIN (TN BPR #003385) JACQUELINE B DIXON (TN BPR #012054) HOLLINS, W AGSTER, YARBROUGH, WEATHERLY & RAYBIN, PC 22nd FloOl Sun Trust Center 424 Church Street Nashville, Tennessee 37219 (615) 256-6666
OF COUNSEL FOR PLAINTIFFS:
RICHARD B FIELDS (TN BPR #4744) 688 Jefferson Memphis, TN 38105 (901) 578-7709
JOHN W. PIEROTn (TN BPR #7851) ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V DAVIES (TN BPR #016052) Ritchie, Fels & Dillard, PC 606 W. Main Street, Suite .300 Knoxville, TN 37902 (865) 637-0661
57. Case 3:00-cv-00445 Document 265 Filed 05/11/07 Page 57 of 58 PageID #: 895

ATTORNEYS FOR DEFENDANTS: lsi Douglas E. Dimond DOUGLAS E. DIMOND (TN BPR #17953) ELIZABETH C DRIVER (TN BPR #19363) Office of the Attorney General General Civil Division 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 (615) 532-7913
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

ORDER

Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period August 1, 2011 through July 31, 2012. Plaintiffs’ counsel seek $144,031.93 in attorneys’ fees and $9,655.76 in out-of-pocket expenses. Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and have not opposed Plaintiffs’ motion. Having duly considered all papers submitted in connection with Plaintiffs’ motion for reimbursement of attorneys’ fees and expenses, the Court hereby grants Plaintiffs’ motion for $144,031.93 in attorneys’ fees and $9,655.76 in out-of-pocket expenses pursuant to Fed. R. Civ. P. 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication and a hearing in connection with each of Plaintiffs’ periodic requests for fees, the Court further orders that notice and hearing are not required in connection with this motion.
Within 30 days of the entry of this ORDER, Defendants shall pay a total of $153,687.69 to Children’s Rights, in complete payment and settlement of all fees and expenses for the period from August 1, 2011 to July 31, 2012.

Case 3:00-cv-00445 Document 482 Filed 02/08/13 Page 1 of 2 PageID #: 11956

SO ORDERED, this ____ day of February, 2013, in Nashville, Tennessee. _____________________________ HON. TODD J. CAMPBELL United States District Court
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) )

SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

Case 3:00-cv-00445 Document 500 Filed 09/19/13 Page 1 of 36 PageID #: 12966

TABLE OF CONTENTS
Preamble ..........................................................................................................................................3 I. Principles of the September 2013 Modified Settlement Agreement and Exit Plan and
Definitions .................................................................................................................................... 3 A. Principles of the September 2013 Modified Settlement Agreement and Exit Plan ..3 B. Class Definition ......................................................................................................5 C. Principles of Tennessee’s Child and Family Team Meeting Model........................5 D. Definition of Provisions Identified as “MAINTENANCE” ....................................6 E. Other Definitions .....................................................................................................6 II. Structure of the Agency .......................................................................................................7 III. Reporting Abuse and Neglect ..............................................................................................7 IV. Regional Services.................................................................................................................7 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................8 VI. Placement and Supervision of Children.............................................................................12 VII. Planning for Children: Minimum Standards for All Children and Youth .........................17 VIII. Freeing a Child for Adoption .............................................................................................19 IX. Resource Parent Recruitment, Retention, and Approval ...................................................22 X. Statewide Information System ...........................................................................................24 XI. Quality Assurance ..............................................................................................................24 XII. Supervision of Private Provider Agencies .........................................................................26 XIII. Financial Development ......................................................................................................27 XIV. Technical Assistance Committee .......................................................................................28 XV. Monitoring .........................................................................................................................28 XVI. Outcome and Performance Measures ................................................................................29 XVII. Modification.......................................................................................................................33 XVIII. Enforcement, Termination and Exit...................................................................................33 A. General Principles Guiding Enforcement ..............................................................33 B. Dispute Resolution.................................................................................................33 C. Identification of “MAINTENANCE” Provisions ..................................................34 D. Termination and Exit .............................................................................................34 XIX. External Accountability Reporting Structure ....................................................................35 XX. Attorneys Fees and Expenses.............................................................................................35
2
Case 3:00-cv-00445 Document 500 Filed 09/19/13 Page 2 of 36 PageID #: 12967

PREAMBLE
A. This September 2013 Modified Settlement Agreement and Exit Plan (hereinafter “this agreement”) supersedes and replaces the October 2012 Modified Settlement Agreement and Exit Plan. Subsequent to the resolution of Plaintiffs’ Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court’s approval, termination of jurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the “Department,” the “Department of Children’s Services” or “DCS,” upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children’s Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF THE SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of the September 2013 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of the child’s safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
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neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child’s interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
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9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
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commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. “Foster children” shall mean all children who are or will be in the legal custody of DCS, excluding children who are or will be in the legal custody of DCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of DCS, shall be included in the class.
C. Principles of Tennessee’s Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee’s Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child’s time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child’s case manager, the Child and Family Team should include and engage people who represent both formal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
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4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
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5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as “MAINTENANCE”
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II – XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee (“TAC”) (defined in Section XIV of this agreement) in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants’ performance in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS’s physical, out-of-home custody, or on the date on which the child enters DCS’s legal custody, whichever is sooner. The duration of a child’s time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or
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denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS’s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unit(s) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement and/or private provider (including, if appropriate, closing of the placement and/or contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider’s array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
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B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
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3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
B. Educational background requirements for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master’s degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
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3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master’s degree in social work or a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master’s degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
MAINTENANCE.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
MAINTENANCE.
3. Every case manager supervisor shall complete basic supervisor training and pass a skills-based competency assessment geared specifically to child welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
D. Pre-service and in-service training of DCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
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3. For new supervisors, a minimum of 40 hours of in-service training directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and
4. For supervisors, a minimum of 24 hours of in-service training each year.
E. DCS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DCS policy, and reasonable professional standards.
MAINTENANCE.
F. Prior to contracting with any private provider, DCS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DCS case manager, the curriculum will correspond with DCS pre-service and in-service training.
G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.
MAINTENANCE.
H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DCS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.
I. Prior to contracting or renewal with any private provider, the Department will ensure that each private provider agency has implemented an appropriate performance evaluation process to ensure the competency of those staff with responsibilities comparable to DCS case managers.
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J. A single case manager assigned to a case shall have full responsibility for that case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child’s placement; and assuring a safe, adequate and well-planned exit from foster care. A DCS case manager shall be assigned to every case. If a private provider is engaged in the case, the DCS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DCS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than:
x 15 individual children in DCS custody if the case manager is a case manager I;
x 20 individual children in DCS custody if the case manager is a case manager II or III with no supervisory responsibility; and
x 10 individual children in DCS custody if the case manager III supervises one or two lower level case managers.
If DCS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAC.
K. Supervision by DCS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
x A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
x A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior
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notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers’ supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child’s parents.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
MAINTENANCE.
N. All documentation of contacts or developments in a child’s case shall be added to the child’s case file within 30 days. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and services.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child’s needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child’s permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
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b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for runaways and children facing a direct threat to their safety, or who
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are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days, if a child’s behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
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MAINTENANCE.
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c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.
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MAINTENANCE.
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d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family’s natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.
e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.
MAINTENANCE.
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f. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children unless (a) the child’s needs can be met in that specific facility and (b) that facility is the least restrictive placement that could meet the child’s needs.
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g. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the
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court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal custody who has been placed in a jail, correctional or detention facility.
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MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
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i. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility.
MAINTENANCE.
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j. DCS shall only contract for placements or services with licensed contractors or subcontractors.
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MAINTENANCE.
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2. For provisions VI.A.1.a., b., c., d., e., and f. above, if DCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:
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a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or
b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.
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3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VI.A.1.
B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. MAINTENANCE. The assessment may take place prior to custody, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child’s placement shall be reevaluated to ensure that it meets the child’s needs.
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C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. MAINTENANCE. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department’s policies regarding psychotropic medications.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
G. DCS will maintain a child placement and private provider division within its Central Office. MAINTENANCE. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child’s individual needs to a placement facility or foster family. MAINTENANCE. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly, appropriately, and in accordance with their needs.
H. All children in the plaintiff class shall receive visits from the DCS case manager responsible for their case, whether the child is placed through a program directly run by DCS or through a private provider, as follows:
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1. For children in DCS foster homes, worker-child visiting shall mean a faceto-face visit between the child’s DCS case manager and the child. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child’s needs are being met and service goals are being implemented. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
2. For children in a foster home or facility operated by a private provider:
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a. Private provider case worker: DCS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child’s adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Worker-child visiting shall mean a face-to-face visit between the child’s private agency case worker and the child. All visits shall include a private meeting between the private provider case worker and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
b. DCS case manager: The DCS case manager shall visit each child in a foster home or facility operated by a private provider as frequently as necessary to ensure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented, but at least once each
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month. Worker-child visiting shall mean a face-to-face visit between the child’s DCS case manager and the child in the child’s placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child’s parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker. Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child’s participation would be contrary to his or her best interests.
C. The Department shall begin the process of building a team, assessing, and convening a formal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters state custody. Efforts to ensure the parents’ participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child’s case file.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological
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parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.
F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory caseload. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager’s experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors remain engaged and responsible for quality casework.
G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.
MAINTENANCE.
H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.
MAINTENANCE.
I. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until return home is no longer an option.
MAINTENANCE.
J. The child’s DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child’s permanency goal is appropriate or to change it if it is not, to assure that the child’s services and placement are appropriate and are meeting the child’s specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are
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delivering appropriate services.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child’s permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child’s permanency plan.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody. An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child’s case.
MAINTENANCE
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit. Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child’s continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child’s case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child’s permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
B. DCS has replaced its process for making legal risk placements with policies and procedures for the “dual licensing” of resource families as foster parents and
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adoptive parents.
MAINTENANCE.
C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child’s case record.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child’s case file, for not doing so.
MAINTENANCE.
5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
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a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.

MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed
monthly to assess whether the identified permanent family is still a viable permanency option.
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3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth’s Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee’s dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE
B. DCS will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
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MAINTENANCE.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DCS shall issue annual reports on why resource families leave DCS and what steps are necessary to ensure their retention.
4. To the extent possible, DCS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
MAINTENANCE.
5. DCS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
C. All resource parent room and board rates (including rates for DCS resource parents, private provider resource parents and certified relatives and kin) will at a minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DCS shall provide specialized rates for DCS and private provider resource parents providing services to special needs children. MAINTENANCE. DCS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DCS also will continue to contract with private providers for medically fragile and therapeutic foster care services. MAINTENANCE.
E. DCS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. MAINTENANCE. DCS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
F. DCS shall ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families for whom DCS provides placement and
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services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. MAINTENANCE. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible “audit trail” to the data base administrators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
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MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS’s performance.
MAINTENANCE.
E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
3. Children with a permanency goal of return home that has remained in effect for more than 24 months.
4. Children who have returned home and reentered care more than twice and have a permanency goal to return to that home.
5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed.
MAINTENANCE.
6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home.
MAINTENANCE.
7. Children more than 60 days in custody who do not have a permanency plan.
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8. Children for whom the permanency goal has not been updated for more than 12 months.
9. Children who have been in custody for 15 months or more with no TPR petition filed.
MAINTENANCE.
F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004.
MAINTENANCE.
G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998.
MAINTENANCE.
XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES
A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts.
MAINTENANCE.
B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.

D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for
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children in the plaintiff class shall be inspected annually by DCS staff with relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to determine agency compliance with the terms of this agreement.

F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding term of the contract.

MAINTENANCE
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal dollars result in additional federal funding. Nothing in this provision shall reduce the defendants’ financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee (“TAC”) of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer,
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Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs’ right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not
initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC’s monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
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A. Child Welfare Outcomes
1. Reunification
At least 80% of children entering care who are reunified with their parents or caregivers at the time of discharge from custody shall be reunified within 12 months of the latest removal date.
Of the remaining children, 75% shall be reunified within 24 months of the latest removal date.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
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MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college, alternative approved educational program for special needs children, vocational training; or be employed full time.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record). The visit shall take place in the child’s home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child’s permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child’s case manager may consider the wishes of a child (generally older adolescents) and document in the case file any deviation from usual visitation requirements.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
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c. For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent’s home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record), or more as otherwise required by the child’s permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more of the siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child’s wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and
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contact is maintained, shall be documented in the case file.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption. MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
MAINTENANCE.
6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
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1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly demonstrate that DCS action or inaction in contravention of this
agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of “MAINTENANCE” Provisions 

1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
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2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC’s decision shall be final, binding, and unappealable by the parties.
3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor’s reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests of justice.
XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs’ counsel, shall develop an external accountability reporting center (the “Center”). Beginning in January of 2011, DCS will fund and the Center will build the capacity to report publicly on DCS’s maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIII.D over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court’s termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
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D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIII.D of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

_____________, 2013 Nashville, TN

SO ORDERED:

___________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J.

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS: /s/ Marcia Robinson Lowry MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) MELISSA COHEN (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219
35
Case 3:00-cv-00445 Document 500 Filed 09/19/13 Page 35 of 36 PageID #: 13000

(615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS: /s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) BPR # 014022 Deputy Attorney General General Civil Division P. O. Box 20207 Nashville, TN 37202 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119
(901)685Ͳ2662
36
Case 3:00-cv-00445 Document 500 Filed 09/19/13 Page 36 of 36 PageID #: 13001

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

STIPULATED ONE-TIME MODIFICATION OF SECTION XV.A OF THE OCTOBER 2012 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND REQUEST FOR COURT APPROVAL
On October 24, 2012, the Court approved the parties’ proposed October 2012 Modified
Settlement Agreement and Exit Plan, Dkt. 444-1 (“October 2012 Exit Plan”), which provides in
Section XV.A:
The [Technical Assistance Committee] shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. . . .
Dkt. 444-1 at 28.
The parties and the TAC agree that an extended reporting period will better allow
the TAC to carry out the data analysis and reviews required to conduct a robust
assessment of performance.

Case 3:00-cv-00445 Document 501 Filed 09/19/13 Page 1 of 4 PageID #: 13002

Accordingly, pursuant to Section XVII of the October 2012 Exit Plan providing for requested modification “on the consent of the parties,” the parties agree to, and request the Court to approve, the following:
The next TAC report on performance shall cover the twelve-month period from January 1, 2013 through and including December 31, 2013. The TAC shall issue reports for each six-month period thereafter, unless amended upon further Order of this Court.

DATED:

September 16, 2013 Nashville, TN

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader MARCIA ROBINSON LOWRY (pro hac vice) IRA LUSTBADER (pro hac vice) MELISSA COHEN (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377

2 Case 3:00-cv-00445 Document 501 Filed 09/19/13 Page 2 of 4 PageID #: 13003

OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) GLANKLER BROWN, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) RITCHIE, DILLARD AND DAVIES 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) Deputy Attorney General General Civil Division P.O. Box 20207 Nashville, TN 37243 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
SO ORDERED:
____________________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J. DATE:
3
Case 3:00-cv-00445 Document 501 Filed 09/19/13 Page 3 of 4 PageID #: 13004

CERTIFICATE OF SERVICE I, Melissa Cohen, hereby certify that, on September 16, 2013, a true and correct copy of this Proposed Stipulated One-Time Modification of Section XV.A of the October 2012 Modified Settlement Agreement and Exit Plan and Request for Court Approval in the case of Brian A. v. Haslam has been served on Defendants’ counsel Martha A. Campbell, Deputy Attorney General, General Civil Division, P.O. Box 20207, Nashville, TN 37202, and Jonathan Lakey, Pietrangelo Cook, PLC, 6410 Poplar Avenue, Suite 190, Memphis, TN 38119, electronically by operation of the Court’s electronic filing system.

DATED:

September 16, 2013

/s/ Melissa Cohen____ Melissa Cohen

4 Case 3:00-cv-00445 Document 501 Filed 09/19/13 Page 4 of 4 PageID #: 13005

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

ORDER
Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period from August 1, 2012 to October 31, 2013. Plaintiffs’ counsel seek a total of $270,947.87 for reasonable post-judgment attorneys’ fees and litigation expenses. Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and have not opposed Plaintiffs’ motion. Having duly considered all papers submitted in connection with Plaintiffs’ motion for approval of attorneys’ fees and expenses, the Court hereby grants Plaintiffs’ motion for $270,947.87 for reasonable post-judgment attorneys’ fees and litigation expenses pursuant to Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication, and a hearing in connection with each of Plaintiffs’ periodic requests for fees, the Court further orders that notice, publication, and a hearing are not required in connection with this motion.

Case 3:00-cv-00445 Document 508 Filed 02/11/14 Page 1 of 2 PageID #: 13225

Within 30 days of the entry of this ORDER, Defendants shall pay a total of $270,947.87 to Children’s Rights, in complete payment and settlement of all fees and expenses for the period from August 1, 2012 to October 31, 2013.
SO ORDERED, this ____ day of February, 2014, in Nashville, Tennessee. _____________________________ HON. TODD J. CAMPBELL United States District Court
-2Case 3:00-cv-00445 Document 508 Filed 02/11/14 Page 2 of 2 PageID #: 13226

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

STIPULATED ONE-TIME MODIFICATION OF SECTION XV.A OF THE SEPTEMBER 2013 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND REQUEST FOR COURT APPROVAL
On September 19, 2013, the Court approved the parties’ proposed September 2013
Modified Settlement Agreement and Exit Plan, Dkt. No. 500 (“September 2013 Exit Plan”),
which provides in Section XV.A:
The [Technical Assistance Committee] shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. . . .
Dkt. No. 500 at 28.
The parties and the TAC agree that an extended reporting period will better allow
the TAC to carry out the data analysis and reviews required to conduct a robust
assessment of performance.

Case 3:00-cv-00445 Document 529 Filed 09/19/14 Page 1 of 5 PageID #: 14014

Accordingly, pursuant to Section XVII of the September 2013 Exit Plan providing for requested modification “on the consent of the parties,” the parties agree to, and request the Court to approve, the following:
The next TAC report on performance shall cover the twelve-month period from January 1, 2014 through and including December 31, 2014. The TAC shall issue reports for each six-month period thereafter, unless amended upon further Order of this Court.
The modification set forth above shall be in addition to the TAC issuing a supplemental report on or before December 31, 2014, on provisions in the Exit Plan agreed upon by the parties and the TAC, provided that the parties and the TAC shall follow the procedures in Section XVIII.C regarding the identification of “Maintenance” provisions, and the filing of a proposed joint modification to the Exit Plan, following the production of a supplemental report.

DATED:

September 2, 2014 Nashville, TN

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210

2 Case 3:00-cv-00445 Document 529 Filed 09/19/14 Page 2 of 5 PageID #: 14015

/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) GLANKLER BROWN, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) RITCHIE, DILLARD AND DAVIES 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) Deputy Attorney General General Civil Division P.O. Box 20207 Nashville, TN 37243 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
3
Case 3:00-cv-00445 Document 529 Filed 09/19/14 Page 3 of 5 PageID #: 14016

SO ORDERED: ____________________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J. DATE:
4 Case 3:00-cv-00445 Document 529 Filed 09/19/14 Page 4 of 5 PageID #: 14017

CERTIFICATE OF SERVICE I, Sarah Russo, hereby certify that, on September 2, 2014, a true and correct copy of this Proposed Stipulated One-Time Modification of Section XV.A of the September 2013 Modified Settlement Agreement and Exit Plan and Request for Court Approval in the case of Brian A. v. Haslam has been served on Defendants’ counsel Martha A. Campbell, Deputy Attorney General, General Civil Division, P.O. Box 20207, Nashville, TN 37202, and Jonathan Lakey, Pietrangelo Cook, PLC, 6410 Poplar Avenue, Suite 190, Memphis, TN 38119, electronically by operation of the Court’s electronic filing system.

DATED:

September 2, 2014

/s/ Sarah Russo___ Sarah Russo

5 Case 3:00-cv-00445 Document 529 Filed 09/19/14 Page 5 of 5 PageID #: 14018

 
 BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

JOINT STIPULATION SEEKING COURT APPROVAL OF PROPOSED SEPTEMBER 2014 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

1. Pursuant to Section XVIII.C.3 of the September 2013 Modified Settlement Agreement and Exit Plan (Dkt. No. 500), which remains in full force and effect, the parties hereby jointly file with the Court a proposed joint modification to the September 2013 Modified Settlement Agreement and Exit Plan that includes revisions in the identification of provisions as MAINTENANCE. These revisions are based upon the Monitoring Report of the Technical Assistance Committee (“TAC”) dated May 31, 2014 (Dkt. No. 516-1), negotiations between the parties and the TAC, and supplemental information provided by the TAC in a Supplement to the 2014 Monitoring Report, dated August 27, 2014, attached hereto as Exhibit A.
2. If approved, the proposed September 2014 Modified Settlement Agreement and Exit Plan, attached hereto as Exhibit B, will replace and supersede the September 2013 Modified Settlement Agreement and Exit Plan in its entirety. The parties request that the September 2014 Modified Settlement Agreement and Exit Plan be signed by the Court and entered as a separate docket entry in this action. Also attached hereto as Exhibit C,

Case 3:00-cv-00445 Document 530 Filed 09/19/14 Page 1 of 4 PageID #: 14019

for the Court’s convenience, is a version of the September 2014 Modified Settlement Agreement and Exit Plan that shows the changes in MAINTENANCE designations in redline. As reflected in the three exhibits to this Joint Stipulation, through the processes set forth in Section XIII.C, approval is requested for fourteen (14) new provisions to be identified as MAINTENANCE: Sections IV.B.1, IV.B.3, V.A, V.D.4 , V.H , V.I, VIII.C.5.b, VIII.D.2, IX.B.2, IX.E (second sentence), XI.E.2, XI.E.3, XI.E.4, and XIII.C. No provisions are proposed to be removed from MAINTENANCE.

DATED:

September 2, 2014 Nashville, TN

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS: /s/ Ira Lustbader IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377

2 Case 3:00-cv-00445 Document 530 Filed 09/19/14 Page 2 of 4 PageID #: 14020

OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) GLANKLER BROWN, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) RITCHIE, DILLARD AND DAVIES 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS: /s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) Deputy Attorney General General Civil Division P. O. Box 20207 Nashville, TN 37202 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
SO ORDERED:
____________________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J. DATE:
3
Case 3:00-cv-00445 Document 530 Filed 09/19/14 Page 3 of 4 PageID #: 14021

CERTIFICATE OF SERVICE I, Sarah Russo, hereby certify that, on September 2, 2014, a true and correct copy of this Joint Stipulation Seeking Court Approval of Proposed September 2014 Modified Settlement Agreement and Exit Plan in the case of Brian A. v. Haslam has been served on Defendants’ counsel Martha A. Campbell, Deputy Attorney General, General Civil Division, P.O. Box 20207, Nashville, TN 37202, and Jonathan Lakey, Pietrangelo Cook, PLC, 6410 Poplar Avenue, Suite 190, Memphis, TN 38119, electronically by operation of the Court’s electronic filing system.

DATED:

September 2, 2014

/s/ Sarah Russo____ Sarah Russo

4 Case 3:00-cv-00445 Document 530 Filed 09/19/14 Page 4 of 4 PageID #: 14022

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

CORRECTED PROPOSED JOINT STIPULATED MODIFICATION OF SEPTEMBER 19, 2014 ORDER AND REQUEST FOR COURT APPROVAL
On September 19, 2014, the Court approved the parties’ Stipulated One-Time
Modification of Section XV.A of the September 2013 Modified Settlement Agreement and Exit
Plan and Request for Court Approval, Dkt. No. 529, which provides in the final paragraph:
The modification set forth above shall be in addition to the TAC issuing a supplemental report on or before December 31, 2014, on provisions in the Exit Plan agreed upon by the parties and the TAC, provided that the parties and the TAC shall follow the procedures in Section XVIII.C regarding the identification of “Maintenance” provisions, and the filing of a proposed joint modification to the Exit Plan, following the production of a supplemental report.
Dkt. No. 529 at 2.
The parties and the TAC agree that additional time to complete the supplemental
report will allow the TAC to provide a more robust assessment of performance. The
parties and the TAC further agree that this additional time will not impact the timing of
the subsequent TAC report, covering the twelve-month period from January 1, 2014
through and including December 31, 2014.

Case 3:00-cv-00445 Document 533 Filed 12/18/14 Page 1 of 4 PageID #: 14060

Accordingly, the parties agree to, and request the Court to approve, the following

modifications to the final paragraph of Dkt. No. 529:

The modification set forth above shall be in addition to the TAC issuing a supplemental report on or before January 30, 2015, on provisions in the Exit Plan agreed upon by the parties and the TAC. The parties and the TAC shall complete the procedures in Section XVIII.C regarding the identification of “Maintenance” provisions, and the filing of a proposed joint modification to the Exit Plan, prior to the scheduled Status Conference on April 13, 2015.

All other terms of Dkt. No. 529 shall remain in full force and effect.

DATED:

December 18, 2014 Nashville, TN

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377

2 Case 3:00-cv-00445 Document 533 Filed 12/18/14 Page 2 of 4 PageID #: 14061

OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) GLANKLER BROWN, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) RITCHIE, DILLARD AND DAVIES 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) Deputy Attorney General General Civil Division P.O. Box 20207 Nashville, TN 37243 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
SO ORDERED:
____________________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J. DATE:
3
Case 3:00-cv-00445 Document 533 Filed 12/18/14 Page 3 of 4 PageID #: 14062

CERTIFICATE OF SERVICE

I, Sarah Russo, hereby certify that, on December 18, 2014, a true and correct copy of this Corrected Proposed Joint Stipulated Modification of September 19, 2014 Order and Request for Court Approval in the case of Brian A. v. Haslam has been served on Defendants’ counsel Martha A. Campbell, Deputy Attorney General, General Civil Division, P.O. Box 20207, Nashville, TN 37202, and Jonathan Lakey, Pietrangelo Cook, PLC, 6410 Poplar Avenue, Suite 190, Memphis, TN 38119, electronically by operation of the Court’s electronic filing system.

DATED:

December 18, 2014

/s/ Sarah Russo___ Sarah Russo

4 Case 3:00-cv-00445 Document 533 Filed 12/18/14 Page 4 of 4 PageID #: 14063

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

CORRECTED PROPOSED JOINT STIPULATED MODIFICATION OF SEPTEMBER 19, 2014 ORDER AND REQUEST FOR COURT APPROVAL
On September 19, 2014, the Court approved the parties’ Stipulated One-Time
Modification of Section XV.A of the September 2013 Modified Settlement Agreement and Exit
Plan and Request for Court Approval, Dkt. No. 529, which provides in the final paragraph:
The modification set forth above shall be in addition to the TAC issuing a supplemental report on or before December 31, 2014, on provisions in the Exit Plan agreed upon by the parties and the TAC, provided that the parties and the TAC shall follow the procedures in Section XVIII.C regarding the identification of “Maintenance” provisions, and the filing of a proposed joint modification to the Exit Plan, following the production of a supplemental report.
Dkt. No. 529 at 2.
The parties and the TAC agree that additional time to complete the supplemental
report will allow the TAC to provide a more robust assessment of performance. The
parties and the TAC further agree that this additional time will not impact the timing of
the subsequent TAC report, covering the twelve-month period from January 1, 2014
through and including December 31, 2014.

Case 3:00-cv-00445 Document 534 Filed 12/19/14 Page 1 of 4 PageID #: 14064

Accordingly, the parties agree to, and request the Court to approve, the following

modifications to the final paragraph of Dkt. No. 529:

The modification set forth above shall be in addition to the TAC issuing a supplemental report on or before January 30, 2015, on provisions in the Exit Plan agreed upon by the parties and the TAC. The parties and the TAC shall complete the procedures in Section XVIII.C regarding the identification of “Maintenance” provisions, and the filing of a proposed joint modification to the Exit Plan, prior to the scheduled Status Conference on April 13, 2015.

All other terms of Dkt. No. 529 shall remain in full force and effect.

DATED:

December 18, 2014 Nashville, TN

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377

2 Case 3:00-cv-00445 Document 534 Filed 12/19/14 Page 2 of 4 PageID #: 14065

OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) GLANKLER BROWN, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) RITCHIE, DILLARD AND DAVIES 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
ATTORNEYS FOR DEFENDANTS:
/s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) Deputy Attorney General General Civil Division P.O. Box 20207 Nashville, TN 37243 (615) 741-6420
/s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
SO ORDERED:
____________________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J. DATE:
3
Case 3:00-cv-00445 Document 534 Filed 12/19/14 Page 3 of 4 PageID #: 14066

CERTIFICATE OF SERVICE

I, Sarah Russo, hereby certify that, on December 18, 2014, a true and correct copy of this Corrected Proposed Joint Stipulated Modification of September 19, 2014 Order and Request for Court Approval in the case of Brian A. v. Haslam has been served on Defendants’ counsel Martha A. Campbell, Deputy Attorney General, General Civil Division, P.O. Box 20207, Nashville, TN 37202, and Jonathan Lakey, Pietrangelo Cook, PLC, 6410 Poplar Avenue, Suite 190, Memphis, TN 38119, electronically by operation of the Court’s electronic filing system.

DATED:

December 18, 2014

/s/ Sarah Russo___ Sarah Russo

4 Case 3:00-cv-00445 Document 534 Filed 12/19/14 Page 4 of 4 PageID #: 14067

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) )

SEPTEMBER 2015 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

Case 3:00-cv-00445 Document 547 Filed 10/05/15 Page 1 of 39 PageID #: 15164

TABLE OF CONTENTS
Preamble ......................................................................................................................................... 3 I. Principles of the September 2015 Modified Settlement Agreement and Exit Plan and
Definitions ............................................................................................................................... 3 A. Principles of the September 2015 Modified Settlement Agreement and Exit Plan ............. 3 B. Class Definition ................................................................................................................... 5 C. Principles of Tennessee’s Child and Family Team Meeting Model.................................... 5 D. Definition of Provisions Identified as “MAINTENANCE” ................................................ 6 E. Other Definitions ................................................................................................................. 6 II. Structure of the Agency ........................................................................................................ 7 III. Reporting Abuse and Neglect .............................................................................................. 7 IV. Regional Services................................................................................................................. 8 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................ 8 VI. Placement and Supervision of Children............................................................................. 13 VII. Planning for Children: Minimum Standards for All Children and Youth ......................... 18 VIII. Freeing a Child for Adoption ............................................................................................. 21 IX. Resource Parent Recruitment, Retention, and Approval ................................................... 24 X. Statewide Information System........................................................................................... 26 XI. Quality Assurance .............................................................................................................. 26 XII. Supervision of Private Provider Agencies ......................................................................... 28 XIII. Financial Development ...................................................................................................... 29 XIV. Technical Assistance Committee ....................................................................................... 30 XV. Monitoring ......................................................................................................................... 30 XVI. Outcome and Performance Measures ................................................................................ 31 XVII. Modification ...................................................................................................................... 35 XVIII. Enforcement, Termination and Exit .................................................................................. 35 A. General Principles Guiding Enforcement ...................................................................... 35 B. Dispute Resolution......................................................................................................... 36 C. Identification of “MAINTENANCE” Provisions .......................................................... 36 D. Termination and Exit...................................................................................................... 37 XIX. External Accountability Reporting Structure..................................................................... 37 XX. Attorneys Fees and Expenses............................................................................................. 38
2
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PREAMBLE
A. This September 2015 Modified Settlement Agreement and Exit Plan (hereinafter “this agreement”) supersedes and replaces the April 2015 Modified Settlement Agreement and Exit Plan. Subsequent to the resolution of Plaintiffs’ Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court’s approval, termination of jurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the “Department,” the “Department of Children’s Services” or “DCS,” upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children’s Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF THE SEPTEMBER 2015 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of the September 2015 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of the child’s safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
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neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child’s interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
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commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. “Foster children” shall mean all children who are or will be in the legal custody of DCS, excluding children who are or will be in the legal custody of DCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of DCS, shall be included in the class.
C. Principles of Tennessee’s Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee’s Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child’s time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child’s case manager, the Child and Family Team should include and engage people who represent both formal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
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4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as “MAINTENANCE”
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II – XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee (“TAC”) (defined in Section XIV of this agreement) in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants’ performance in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS’s physical, out-of-home custody, or on the date on which the child enters DCS’s legal custody, whichever is sooner. The duration of a child’s time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or
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denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS’s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
MAINTENANCE.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unit(s) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement and/or private provider (including, if appropriate, closing of the placement and/or contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider’s array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
MAINTENANCE.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
MAINTENANCE.
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IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
MAINTENANCE.
B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
MAINTENANCE.
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
MAINTENANCE.
3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
MAINTENANCE.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
MAINTENANCE.
B. Educational background requirements for DCS case managers responsible for
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cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master’s degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master’s degree in social work or a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master’s degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
MAINTENANCE.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
MAINTENANCE.
3. Every case manager supervisor shall complete basic supervisor training
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and pass a skills-based competency assessment geared specifically to child welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
MAINTENANCE.
D. Pre-service and in-service training of DCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
3. For new supervisors, a minimum of 40 hours of in-service training directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and
MAINTENANCE.
4. For supervisors, a minimum of 24 hours of in-service training each year.
MAINTENANCE.
E. DCS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DCS policy, and reasonable professional standards.
MAINTENANCE.
F. Prior to contracting with any private provider, DCS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DCS case manager, the curriculum will correspond with DCS pre-service and in-service
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training.
MAINTENANCE.
G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.
MAINTENANCE.
H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DCS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.
MAINTENANCE.
I. Prior to contracting or renewal with any private provider, the Department will ensure that each private provider agency has implemented an appropriate performance evaluation process to ensure the competency of those staff with responsibilities comparable to DCS case managers.
MAINTENANCE.
J. A single case manager assigned to a case shall have full responsibility for that case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child’s placement; and assuring a safe, adequate and well-planned exit from foster care. A DCS case manager shall be assigned to every case. If a private provider is engaged in the case, the DCS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DCS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than: x 15 individual children in DCS custody if the case manager is a case manager
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I; x 20 individual children in DCS custody if the case manager is a case manager
II or III with no supervisory responsibility; and x 10 individual children in DCS custody if the case manager III supervises one
or two lower level case managers.
MAINTENANCE.
If DCS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAC.
MAINTENANCE.
K. Supervision by DCS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
x A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
x A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers’ supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child’s parents.
MAINTENANCE.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
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MAINTENANCE.
N. All documentation of contacts or developments in a child’s case shall be added to the child’s case file within 30 days. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and services.
MAINTENANCE.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child’s needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child’s permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days, if a child’s behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
MAINTENANCE.
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c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.
MAINTENANCE.
d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family’s natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.
MAINTENANCE.
e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.
MAINTENANCE.
f. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children unless (a) the child’s needs can be met in that specific facility and (b) that facility is the least restrictive placement that could meet the child’s needs.
MAINTENANCE.
g. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal
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custody who has been placed in a jail, correctional or detention facility.
MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
i. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility.
MAINTENANCE.
j. DCS shall only contract for placements or services with licensed contractors or subcontractors.
MAINTENANCE.
2. For provisions VI.A.1.a., b., c., d., e., and f. above, if DCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:
a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or
b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.
MAINTENANCE.
3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VI.A.1.
MAINTENANCE.
B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. MAINTENANCE. The assessment may take place prior to
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custody, but no later than 30 days after the child comes into custody. As soon as the assessment is completed, the child’s placement shall be reevaluated to ensure that it meets the child’s needs.
C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified.
MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department’s policies regarding psychotropic medications.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
MAINTENANCE.
G. DCS will maintain a child placement and private provider division within its Central Office. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child’s individual needs to a placement facility or foster family. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly,
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appropriately, and in accordance with their needs.
MAINTENANCE.
H. All children in the plaintiff class shall receive visits from the DCS case manager responsible for their case, whether the child is placed through a program directly run by DCS or through a private provider, as follows:
1. For children in DCS foster homes, worker-child visiting shall mean a faceto-face visit between the child’s DCS case manager and the child. MAINTENANCE. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. MAINTENANCE. Visits shall be made as frequently as is necessary to assure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child’s needs are being met and service goals are being implemented. MAINTENANCE. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody, and at least 3 of these visits shall take place in the child’s placement. MAINTENANCE. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. MAINTENANCE. One of these two face-to-face visits must take place in the caregiver’s home. MAINTENANCE.
2. For children in a foster home or facility operated by a private provider:
a. Private provider case worker: DCS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child’s adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented. MAINTENANCE. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. MAINTENANCE. Worker-child visiting shall mean a face-toface visit between the child’s private agency case worker and the child. MAINTENANCE. All visits shall include a private meeting between the private provider case worker and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the
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child’s placement. MAINTENANCE. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. MAINTENANCE. One of these two face-to-face visits must take place in the caregiver’s home. MAINTENANCE.
b. DCS case manager: The DCS case manager shall visit each child in a foster home or facility operated by a private provider as frequently as necessary to ensure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented, but at least once each month. MAINTENANCE. Worker-child visiting shall mean a face-to-face visit between the child’s DCS case manager and the child in the child’s placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child’s parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker. Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child’s participation would be contrary to his or her best interests.
C. The Department shall begin the process of building a team, assessing, and convening a formal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters
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state custody. Efforts to ensure the parents’ participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child’s case file.
MAINTENANCE.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
MAINTENANCE.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.
MAINTENANCE.
F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory caseload. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager’s experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors remain engaged and responsible for quality casework.
MAINTENANCE.
G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.
MAINTENANCE.
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H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.
MAINTENANCE.
I. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until return home is no longer an option.
MAINTENANCE.
J. The child’s DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child’s permanency goal is appropriate or to change it if it is not, to assure that the child’s services and placement are appropriate and are meeting the child’s specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
MAINTENANCE.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child’s permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child’s permanency plan.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody. An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child’s case.
MAINTENANCE.
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit.
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Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child’s continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child’s case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child’s permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
B. DCS has replaced its process for making legal risk placements with policies and procedures for the “dual licensing” of resource families as foster parents and adoptive parents.
MAINTENANCE.
C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child’s case record.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a
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relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
MAINTENANCE.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
MAINTENANCE.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
MAINTENANCE.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child’s case file, for not doing so.
MAINTENANCE.
5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
MAINTENANCE.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.
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MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
MAINTENANCE.
2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed monthly to assess whether the identified permanent family is still a viable permanency option.
MAINTENANCE.
3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth’s Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
MAINTENANCE.
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
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MAINTENANCE.
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
MAINTENANCE.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
MAINTENANCE.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee’s dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE.
B. DCS will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
MAINTENANCE.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
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MAINTENANCE.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DCS shall issue annual reports on why resource families leave DCS and what steps are necessary to ensure their retention.
MAINTENANCE.
4. To the extent possible, DCS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
MAINTENANCE.
5. DCS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
C. All resource parent room and board rates (including rates for DCS resource parents, private provider resource parents and certified relatives and kin) will at a minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DCS shall provide specialized rates for DCS and private provider resource parents providing services to special needs children. DCS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DCS also will continue to contract with private providers for medically fragile and therapeutic foster care services.
MAINTENANCE.
E. DCS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. DCS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
MAINTENANCE.
F. DCS shall ensure that the pool of resource families is proportionate to the race
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and ethnicity of the children and families for whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
MAINTENANCE.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible “audit trail” to the data base administrators of all information entered, added, deleted or modified, and shall have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
MAINTENANCE.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
MAINTENANCE.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
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B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS’s performance.
MAINTENANCE.
E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
MAINTENANCE.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
MAINTENANCE.
3. Children with a permanency goal of return home that has remained in effect for more than 24 months.
MAINTENANCE.
4. Children who have returned home and reentered care more than twice and
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have a permanency goal to return to that home. MAINTENANCE. 5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed. MAINTENANCE. 6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home. MAINTENANCE. 7. Children more than 60 days in custody who do not have a permanency plan. MAINTENANCE. 8. Children for whom the permanency goal has not been updated for more than 12 months. MAINTENANCE. 9. Children who have been in custody for 15 months or more with no TPR petition filed. MAINTENANCE. F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004. MAINTENANCE. G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998. MAINTENANCE. XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts. MAINTENANCE.
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B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.
D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for children in the plaintiff class shall be inspected annually by DCS staff with relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to determine agency compliance with the terms of this agreement.
MAINTENANCE.
F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding term of the contract.
MAINTENANCE.
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act
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of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal dollars result in additional federal funding. Nothing in this provision shall reduce the defendants’ financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
MAINTENANCE.
XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee (“TAC”) of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer, Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on
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the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs’ right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC’s monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
A. Child Welfare Outcomes
1. Reunification
At least 80% of children entering care who are reunified with their parents or caregivers at the time of discharge from custody shall be reunified within 12 months of the latest removal date.
Of the remaining children, 75% shall be reunified within 24 months of the latest removal date.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
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3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
MAINTENANCE.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college,
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alternative approved educational program for special needs children, vocational training; or be employed full time.
MAINTENANCE.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record). The visit shall take place in the child’s home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child’s permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child’s case manager may consider the wishes of a child (generally older adolescents) and document in the case file any deviation from usual visitation requirements.
MAINTENANCE.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
MAINTENANCE.
c. For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
MAINTENANCE.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a
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specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent’s home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record), or more as otherwise required by the child’s permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more of the siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child’s wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and contact is maintained, shall be documented in the case file.
MAINTENANCE.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
MAINTENANCE.
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4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption.
MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
MAINTENANCE.
6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
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2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly demonstrate that DCS action or inaction in contravention of this agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of “MAINTENANCE” Provisions
1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC’s decision shall be final, binding, and unappealable by the parties.
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3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor’s reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests of justice.
XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs’ counsel, shall develop an external accountability reporting center (the “Center”). Beginning in January of 2011, DCS will fund and the Center will build the capacity to report publicly on DCS’s maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIII.D over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court’s termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIII.D of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
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XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

_____________, 2015 Nashville, TN

SO ORDERED:

___________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J.

APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader_______ IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377

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OF COUNSEL FOR PLAINTIFFS: ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322 WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661 ATTORNEYS FOR DEFENDANTS: /s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) BPR # 014022 Deputy Attorney General General Civil Division P. O. Box 20207 Nashville, TN 37202 (615) 741-6420 /s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) )

APRIL 2016 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

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TABLE OF CONTENTS
Preamble ......................................................................................................................................... 3 I. Principles of the April 2016 Modified Settlement Agreement and Exit Plan and Definitions 3
A. Principles of the April 2016 Modified Settlement Agreement and Exit Plan...................... 3 B. Class Definition ................................................................................................................... 5 C. Principles of Tennessee’s Child and Family Team Meeting Model.................................... 5 D. Definition of Provisions Identified as “MAINTENANCE” ................................................ 6 E. Other Definitions ................................................................................................................. 6 II. Structure of the Agency ........................................................................................................ 7 III. Reporting Abuse and Neglect .............................................................................................. 7 IV. Regional Services................................................................................................................. 8 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................ 8 VI. Placement and Supervision of Children............................................................................. 13 VII. Planning for Children: Minimum Standards for All Children and Youth ......................... 18 VIII. Freeing a Child for Adoption ............................................................................................. 21 IX. Resource Parent Recruitment, Retention, and Approval ................................................... 25 X. Statewide Information System........................................................................................... 26 XI. Quality Assurance .............................................................................................................. 27 XII. Supervision of Private Provider Agencies ......................................................................... 29 XIII. Financial Development ...................................................................................................... 30 XIV. Technical Assistance Committee ....................................................................................... 31 XV. Monitoring ......................................................................................................................... 31 XVI. Outcome and Performance Measures ................................................................................ 32 XVII. Modification ...................................................................................................................... 36 XVIII. Enforcement, Termination and Exit .................................................................................. 36 A. General Principles Guiding Enforcement ...................................................................... 36 B. Dispute Resolution......................................................................................................... 36 C. Identification of “MAINTENANCE” Provisions .......................................................... 37 D. Termination and Exit...................................................................................................... 37 XIX. External Accountability Reporting Structure..................................................................... 38 XX. Attorneys Fees and Expenses............................................................................................. 38
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PREAMBLE
A. This April 2016 Modified Settlement Agreement and Exit Plan (hereinafter “this agreement”) supersedes and replaces the September 2015 Modified Settlement Agreement and Exit Plan. Subsequent to the resolution of Plaintiffs’ Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court’s approval, termination of jurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the “Department,” the “Department of Children’s Services” or “DCS,” upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children’s Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF THE APRIL 2016 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of the April 2016 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of the child’s safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
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neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child’s interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
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commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. “Foster children” shall mean all children who are or will be in the legal custody of DCS, excluding children who are or will be in the legal custody of DCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of DCS, shall be included in the class.
C. Principles of Tennessee’s Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee’s Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child’s time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child’s case manager, the Child and Family Team should include and engage people who represent both formal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
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4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as “MAINTENANCE”
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II – XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee (“TAC”) (defined in Section XIV of this agreement) in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants’ performance in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS’s physical, out-of-home custody, or on the date on which the child enters DCS’s legal custody, whichever is sooner. The duration of a child’s time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or
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denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS’s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
MAINTENANCE.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unit(s) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement and/or private provider (including, if appropriate, closing of the placement and/or contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider’s array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
MAINTENANCE.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
MAINTENANCE.
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IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
MAINTENANCE.
B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
MAINTENANCE.
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
MAINTENANCE.
3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
MAINTENANCE.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
MAINTENANCE.
B. Educational background requirements for DCS case managers responsible for cases of class members and for private provider staff with comparable
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responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master’s degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master’s degree in social work or a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master’s degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
MAINTENANCE.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
MAINTENANCE.
3. Every case manager supervisor shall complete basic supervisor training and pass a skills-based competency assessment geared specifically to child
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welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
MAINTENANCE.
D. Pre-service and in-service training of DCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
3. For new supervisors, a minimum of 40 hours of in-service training directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and
MAINTENANCE.
4. For supervisors, a minimum of 24 hours of in-service training each year.
MAINTENANCE.
E. DCS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DCS policy, and reasonable professional standards.
MAINTENANCE.
F. Prior to contracting with any private provider, DCS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DCS case manager, the curriculum will correspond with DCS pre-service and in-service training.
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MAINTENANCE.
G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.
MAINTENANCE.
H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DCS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.
MAINTENANCE.
I. Prior to contracting or renewal with any private provider, the Department will ensure that each private provider agency has implemented an appropriate performance evaluation process to ensure the competency of those staff with responsibilities comparable to DCS case managers.
MAINTENANCE.
J. A single case manager assigned to a case shall have full responsibility for that case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child’s placement; and assuring a safe, adequate and well-planned exit from foster care. A DCS case manager shall be assigned to every case. If a private provider is engaged in the case, the DCS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DCS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than: x 15 individual children in DCS custody if the case manager is a case manager
I;
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x 20 individual children in DCS custody if the case manager is a case manager II or III with no supervisory responsibility; and
x 10 individual children in DCS custody if the case manager III supervises one or two lower level case managers.
MAINTENANCE.
If DCS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAC.
MAINTENANCE.
K. Supervision by DCS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
x A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
x A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers’ supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child’s parents.
MAINTENANCE.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
MAINTENANCE.
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N. All documentation of contacts or developments in a child’s case shall be added to the child’s case file within 30 days. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and services.
MAINTENANCE.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child’s needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child’s permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days, if a child’s behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
MAINTENANCE.
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c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.
MAINTENANCE.
d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family’s natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.
MAINTENANCE.
e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.
MAINTENANCE.
f. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children unless (a) the child’s needs can be met in that specific facility and (b) that facility is the least restrictive placement that could meet the child’s needs.
MAINTENANCE.
g. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal custody who has been placed in a jail, correctional or detention facility.
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MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
MAINTENANCE.
i. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility.
MAINTENANCE.
j. DCS shall only contract for placements or services with licensed contractors or subcontractors.
MAINTENANCE.
2. For provisions VI.A.1.a., b., c., d., e., and f. above, if DCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:
a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or
b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.
MAINTENANCE.
3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VI.A.1.
MAINTENANCE.
B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. The assessment may take place prior to custody, but no later
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than 30 days after the child comes into custody. As soon as the assessment is completed, the child’s placement shall be reevaluated to ensure that it meets the child’s needs.
MAINTENANCE.
C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified.
MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department’s policies regarding psychotropic medications.
MAINTENANCE.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
MAINTENANCE.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
MAINTENANCE.
G. DCS will maintain a child placement and private provider division within its
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Central Office. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child’s individual needs to a placement facility or foster family. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly, appropriately, and in accordance with their needs.
MAINTENANCE.
H. All children in the plaintiff class shall receive visits from the DCS case manager responsible for their case, whether the child is placed through a program directly run by DCS or through a private provider, as follows:
1. For children in DCS foster homes, worker-child visiting shall mean a faceto-face visit between the child’s DCS case manager and the child. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child’s needs are being met and service goals are being implemented. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
MAINTENANCE.
2. For children in a foster home or facility operated by a private provider:
a. Private provider case worker: DCS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child’s adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Worker-child visiting shall mean a face-to-face visit between the child’s private agency case worker and the child. All visits shall include a private meeting between the private provider case worker and the child out
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of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
MAINTENANCE.
b. DCS case manager: The DCS case manager shall visit each child in a foster home or facility operated by a private provider as frequently as necessary to ensure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented, but at least once each month. Worker-child visiting shall mean a face-to-face visit between the child’s DCS case manager and the child in the child’s placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
MAINTENANCE.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child’s parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker.
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Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child’s participation would be contrary to his or her best interests.
MAINTENANCE.
C. The Department shall begin the process of building a team, assessing, and convening a formal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters state custody. Efforts to ensure the parents’ participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child’s case file.
MAINTENANCE.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
MAINTENANCE.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.
MAINTENANCE.
F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory caseload. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager’s experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors
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remain engaged and responsible for quality casework.
MAINTENANCE.
G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.
MAINTENANCE.
H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.
MAINTENANCE.
I. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until return home is no longer an option.
MAINTENANCE.
J. The child’s DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child’s permanency goal is appropriate or to change it if it is not, to assure that the child’s services and placement are appropriate and are meeting the child’s specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
MAINTENANCE.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child’s permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child’s permanency plan.
MAINTENANCE.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody.
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An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child’s case.
MAINTENANCE.
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit. Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child’s continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child’s case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
MAINTENANCE.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child’s permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
MAINTENANCE.
B. DCS has replaced its process for making legal risk placements with policies and procedures for the “dual licensing” of resource families as foster parents and adoptive parents.
MAINTENANCE.
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C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
MAINTENANCE.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child’s case record.
MAINTENANCE.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
MAINTENANCE.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
MAINTENANCE.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
MAINTENANCE.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child’s case file, for not doing so.
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MAINTENANCE.
5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
MAINTENANCE.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.
MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
MAINTENANCE.
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2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed monthly to assess whether the identified permanent family is still a viable permanency option.
MAINTENANCE.
3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth’s Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
MAINTENANCE.
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
MAINTENANCE.
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
MAINTENANCE.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
MAINTENANCE.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
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IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee’s dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE.
B. DCS will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
MAINTENANCE.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
MAINTENANCE.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DCS shall issue annual reports on why resource families leave DCS and what steps are necessary to ensure their retention.
MAINTENANCE.
4. To the extent possible, DCS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
MAINTENANCE.
5. DCS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
C. All resource parent room and board rates (including rates for DCS resource parents, private provider resource parents and certified relatives and kin) will at a
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minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DCS shall provide specialized rates for DCS and private provider resource parents providing services to special needs children. DCS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DCS also will continue to contract with private providers for medically fragile and therapeutic foster care services.
MAINTENANCE.
E. DCS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. DCS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
MAINTENANCE.
F. DCS shall ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families for whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
MAINTENANCE.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible “audit trail” to the data base administrators of all information entered, added, deleted or modified, and shall
26
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have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
MAINTENANCE.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
MAINTENANCE.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS’s performance.
MAINTENANCE.
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E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
MAINTENANCE.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
MAINTENANCE.
3. Children with a permanency goal of return home that has remained in effect for more than 24 months.
MAINTENANCE.
4. Children who have returned home and reentered care more than twice and have a permanency goal to return to that home.
MAINTENANCE.
5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed.
MAINTENANCE.
6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home.
MAINTENANCE.
7. Children more than 60 days in custody who do not have a permanency plan.
MAINTENANCE.
8. Children for whom the permanency goal has not been updated for more than 12 months.
MAINTENANCE.
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9. Children who have been in custody for 15 months or more with no TPR petition filed.
MAINTENANCE.
F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004.
MAINTENANCE.
G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998.
MAINTENANCE.
XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES
A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts.
MAINTENANCE.
B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.
D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for children in the plaintiff class shall be inspected annually by DCS staff with
29
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relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to determine agency compliance with the terms of this agreement.
MAINTENANCE.
F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding term of the contract.
MAINTENANCE.
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal dollars result in additional federal funding. Nothing in this provision shall reduce the defendants’ financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
MAINTENANCE.
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XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee (“TAC”) of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer, Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs’ right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC’s monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting
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requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
A. Child Welfare Outcomes
1. Reunification
At least 40.5% of all children who enter foster care in a 12-month period shall be discharged to permanency within 12 months of entering.
MAINTENANCE.
At least 66% of all children who enter foster care in a 12-month period shall be discharged to permanency within 24 months of entering.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
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MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
MAINTENANCE.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college, alternative approved educational program for special needs children, vocational training; or be employed full time.
MAINTENANCE.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record). The visit shall take place in the child’s home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child’s permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child’s case manager may consider the wishes of a child (generally older
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adolescents) and document in the case file any deviation from usual visitation requirements.
MAINTENANCE.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
MAINTENANCE.
c. For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
MAINTENANCE.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent’s home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record), or more as otherwise required by the child’s
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permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more of the siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child’s wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and contact is maintained, shall be documented in the case file.
MAINTENANCE.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
MAINTENANCE.
4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption.
MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
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MAINTENANCE.
6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly
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demonstrate that DCS action or inaction in contravention of this agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of “MAINTENANCE” Provisions
1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC’s decision shall be final, binding, and unappealable by the parties.
3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor’s reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests of justice.
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XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs’ counsel, shall develop an external accountability reporting center (the “Center”). Beginning in January of 2011, DCS will fund and the Center will build the capacity to report publicly on DCS’s maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIII.D over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court’s termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIII.D of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

_____________, 2016 Nashville, TN

SO ORDERED:

___________________________________________________ HONORABLE TODD J. CAMPBELL, U.S.D.J.

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APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader_______ IRA LUSTBADER (pro hac vice) SARAH RUSSO (pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
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ATTORNEYS FOR DEFENDANTS: /s/ Martha A. Campbell MARTHA A. CAMPBELL (TN BPR #014022) BPR # 014022 Deputy Attorney General General Civil Division P. O. Box 20207 Nashville, TN 37202 (615) 741-6420 /s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Todd J. Campbell ) Magistrate Judge Joe B. Brown ) ) ) )

ORDER

Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period from November 1, 2014 to October 31, 2015. Plaintiffs’ counsel seek a total of $186,000.00 for reasonable post-judgment attorneys’ fees and litigation expenses. Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and have not opposed Plaintiffs’ motion. In reaching this settlement of attorneys’ fees for the instant time period, the parties expressly agree that Defendants are reserving, and do not through this agreement waive, their right to contest and oppose any aspect of any future requests by Plaintiffs for attorneys’ fees and expenses on any grounds. Having duly considered all papers submitted in connection with Plaintiffs’ motion for approval of attorneys’ fees and expenses, the Court hereby grants Plaintiffs’ motion for $186,000.00 for reasonable post-judgment attorneys’ fees and litigation expenses pursuant to Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication, and a

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hearing in connection with each of Plaintiffs’ periodic requests for fees, the Court further orders that notice, publication, and a hearing are not required in connection with this motion.
Within 30 days of the entry of this ORDER, Defendants shall pay a total of $186,000.00 to Children’s Rights, in complete payment and settlement of all fees and expenses for the period from November 1, 2014 to October 31, 2015.
SO ORDERED, this ____ day of April, 2016, in Nashville, Tennessee. _____________________________ HON. TODD J. CAMPBELL United States District Court
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Waverly D. Crenshaw, Jr. ) Magistrate Judge Joe B. Brown ) ) ) )
ORDER

Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period from November 1, 2015 to October 31, 2016. Plaintiffs’ counsel seek a total of $135,231.47 for reasonable post-judgment attorneys’ fees and litigation expenses. Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and does not opposed Plaintiffs’ motion. In reaching this settlement of attorneys’ fees for the instant time period, the parties expressly agree that Defendants are reserving, and do not through this agreement waive, their right to contest and oppose any aspect of any future requests by Plaintiffs for attorneys’ fees and expenses on any grounds. Having duly considered all papers submitted in connection with Plaintiffs’ motion for approval of attorneys’ fees and expenses, the Court hereby grants Plaintiffs’ motion for $135,231.47 for reasonable post-judgment attorneys’ fees and litigation expenses pursuant to Section XX of the April 2016 Modified Settlement Agreement and Exit Plan (“MSA,” Dkt. No. 555), Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication, and a

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hearing in connection with each of Plaintiffs’ periodic requests for fees, the Court further orders that notice, publication, and a hearing are not required in connection with this motion.
Within 30 days of the entry of this ORDER, Defendants shall pay a total of $135,231.47 to Children’s Rights, in complete payment and settlement of all fees and expenses for the period from November 1, 2015 to October 31, 2016.
____________________________________ WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Waverly D. Crenshaw, Jr. ) Magistrate Judge Joe B. Brown ) ) )

APRIL 2017 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN

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TABLE OF CONTENTS
Preamble ......................................................................................................................................... 3 I. Principles of the April 2017 Modified Settlement Agreement and Exit Plan and Definitions 3
A. Principles of the April 2017 Modified Settlement Agreement and Exit Plan...................... 3 B. Class Definition ................................................................................................................... 5 C. Principles of Tennessee’s Child and Family Team Meeting Model.................................... 5 D. Definition of Provisions Identified as “MAINTENANCE” ................................................ 6 E. Other Definitions ................................................................................................................. 6 II. Structure of the Agency........................................................................................................ 7 III. Reporting Abuse and Neglect .............................................................................................. 7 IV. Regional Services................................................................................................................. 8 V. Staff Qualifications, Training, Caseloads, and Supervision ................................................ 8 VI. Placement and Supervision of Children............................................................................. 13 VII. Planning for Children: Minimum Standards for All Children and Youth ......................... 18 VIII. Freeing a Child for Adoption............................................................................................. 21 IX. Resource Parent Recruitment, Retention, and Approval ................................................... 25 X. Statewide Information System........................................................................................... 26 XI. Quality Assurance.............................................................................................................. 27 XII. Supervision of Private Provider Agencies ......................................................................... 29 XIII. Financial Development ...................................................................................................... 30 XIV. Technical Assistance Committee....................................................................................... 31 XV. Monitoring ......................................................................................................................... 31 XVI. Outcome and Performance Measures ................................................................................ 32 XVII. Modification ...................................................................................................................... 36 XVIII. Enforcement, Termination and Exit.................................................................................. 36 A. General Principles Guiding Enforcement ...................................................................... 36 B. Dispute Resolution......................................................................................................... 36 C. Identification of “MAINTENANCE” Provisions .......................................................... 37 D. Termination and Exit...................................................................................................... 37 XIX. External Accountability Reporting Structure..................................................................... 38 XX. Attorneys Fees and Expenses............................................................................................. 38
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PREAMBLE
A. This April 2017 Modified Settlement Agreement and Exit Plan (hereinafter “this agreement”) supersedes and replaces the April 2016 Modified Settlement Agreement and Exit Plan. Subsequent to the resolution of Plaintiffs’ Motion for Contempt in 2003, Defendants have made progress toward meeting their legal obligations in this action. Accordingly, the parties have negotiated this binding agreement. Pursuant to Section XVIII.D.2, the parties have agreed to the achievements which will allow, upon the Court’s approval, termination of jurisdiction over this action.
B. This court has subject matter jurisdiction and personal jurisdiction over this action and therefore the authority to enter this agreement.
C. This court shall have continuing jurisdiction of this action to ensure compliance with the terms of this agreement.
D. Any state agency responsible for the care, protection, and/or supervision of plaintiff class members shall be bound by the provisions of this agreement. For as long as this agreement remains in effect, all provisions referring to the “Department,” the “Department of Children’s Services” or “DCS,” upon any subsequent changes to the current governmental organizational structure of the Tennessee Department of Children’s Services concerning the children in the plaintiff class as defined herein, shall apply with full force and effect to the State of Tennessee and to any subsequent agency or agencies with any of the responsibilities that apply to the current DCS as of the date of this agreement.
E. This agreement, and any of its provisions, are not, and shall not be construed to be, an admission of any liability on the part of any of the defendants concerning any of the claims and allegations in the complaint in this litigation.
I. PRINCIPLES OF THE APRIL 2017 MODIFIED SETTLEMENT AGREEMENT AND EXIT PLAN AND DEFINITIONS
A. Principles of the April 2017 Modified Settlement Agreement and Exit Plan
1. All children should have the best possible opportunity to grow up within a safe, nurturing family, either their biological family or, if that is not possible, within an adoptive family.
2. The state should make reasonable efforts to avoid foster care placement by providing services to preserve the biological family whenever that is reasonably possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of the child’s safety. However, child welfare decision-makers must have the professional capacity to make determinations as to when making efforts to preserve the biological family, or leaving the child with that family, is
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neither safe for the child nor likely to lead to an appropriate result for the child.
3. After children enter placement, all non-destructive family ties should be maintained and nurtured. Children should be placed with relatives who are able to provide a safe, nurturing home for them, and should be placed with siblings, and relationships with relatives and siblings should be facilitated and maintained by the child welfare agency.
4. Foster care should be as temporary as possible, aimed at providing a permanent home for the child as quickly as possible. In determining what plans and services will best meet this goal, the child’s interests must be paramount.
5. The state has primary responsibility for the care and protection of children who enter the foster care system. Insofar as it relies on private provider agencies to assist in meeting this responsibility, it should only do so according to standards set by and rigorously monitored by the state.
6. All children in need of child welfare services should receive full and equal access to the best available services, regardless of race, religion, ethnicity, or disabilities.
7. Children in foster care should be placed in accordance with their individual needs, as close to home and community as possible, in the least restrictive, most family-like setting possible. The state should make all efforts to avoid the use of non-family settings for children, particularly young children.
8. Children in foster care should have stable placements that meet their needs and the services necessary to address both the trauma of foster care placement and the problems surrounding their removal from their family.
9. Children in out-of-home placement must have timely decision-making and implementation about where and with whom they will spend their childhood.
10. Families of children in foster care should be significant participants in the planning and decision-making concerning their children.
11. All parties in judicial proceedings involving neglect, abuse, unruly and delinquency should be provided a fair hearing and their constitutional and other legal rights should be enforced and recognized.
12. Except where a particular provision of this agreement establishes a specific limit on the resources required to be allocated, Defendants shall
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commit all necessary resources (administrative, personnel, financial and otherwise) to implement all provisions herein.
13. All actions required for plaintiff class members shall be documented within their individual case file. DCS shall be able to produce aggregate data requested by the Monitor concerning compliance with the provisions herein.
14. All reports made available pursuant to this agreement shall be public information, provided that if any report contains individually identifiable information, such individually identifiable information shall not be made public.
B. Class Definition
Pursuant to the terms of this agreement, this case shall be certified as a class action and the class certified shall be defined as follows: All foster children who are or will be in the legal custody of DCS. “Foster children” shall mean all children who are or will be in the legal custody of DCS, excluding children who are or will be in the legal custody of DCS upon an allegation or adjudication of a delinquent or criminal act. Children who are or will be in the custody of DCS upon an allegation or adjudication of an unruly or status offense shall be included in the class, and children who are or will be in the custody of DCS upon on allegation of a delinquent or criminal act and which allegation is subsequently dropped or fails to result in an adjudication of a delinquent or criminal act and who remain in the legal custody of DCS, shall be included in the class.
C. Principles of Tennessee’s Child and Family Team Meeting Model
Tennessee has adopted a model for engaging children, family members and their own support persons in the process of ensuring the safety, permanency and wellbeing of class members. Tennessee’s Child and Family Team Meeting (CFTM) model shall be guided by the following principles:
1. All children in foster care must have a CFTM that meets regularly throughout a child’s time in custody, that utilizes the CFTM process for assessment and planning, that monitors and tracks the implementation of the plan, and that reconvenes as needed but no less often than every three (3) months to adjust the plan and respond to new issues.
2. In addition to the child/youth, his or her family, and the child’s case manager, the Child and Family Team should include and engage people who represent both formal and informal supports for the family.
3. Except in emergencies, CFTMs should include pre-meeting preparation with the family and child, including face-to-face meetings as appropriate.
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4. Children should not enter custody, should not have a permanency plan established or updated, should not disrupt from a placement, and should not be discharged from care without the convening of a CFTM.
5. Case managers should effectively serve as the primary persons responsible for the Child and Family Team Process.
D. Definition of Provisions Identified as “MAINTENANCE”
1. Specific provisions in this agreement are followed by the term MAINTENANCE. In some sections, a whole paragraph is followed by a skipped space and then the term MAINTENANCE below it.
2. For Sections II – XIII, the term MAINTENANCE shall mean, for the sentence immediately preceding the term, or for the paragraph immediately above the term, that if Defendants maintain or improve the performance with such provision(s) as reported by the technical assistance committee (“TAC”) (defined in Section XIV of this agreement) in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
3. For Section XVI, the term MAINTENANCE shall mean, for the paragraph immediately above the term, that: (a) if Defendants maintain or improve the performance with such provision(s) as reported by the TAC in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII; or (b) if Defendants’ performance in the monitoring report that immediately preceded the initial court-approved identification of the sentence or paragraph as MAINTENANCE, meets or exceeds that required in Section XVI, and Defendants maintain or improve upon the required level of performance in Section XVI, such performance shall be considered substantial compliance for purposes of Termination and Exit under Section XVIII.
E. Other Definitions
1. A child shall be considered to have entered foster care custody on the date that the child enters DCS’s physical, out-of-home custody, or on the date on which the child enters DCS’s legal custody, whichever is sooner. The duration of a child’s time in DCS custody shall include the entire time period after which a child entered custody until formally discharged from DCS custody.
2. Race and/or ethnicity and/or religion shall not be the basis for a delay or
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denial in the placement of a child. Race and/or ethnicity shall otherwise be appropriate considerations in evaluating the best interest of an individual child to be matched with a particular family.
II. STRUCTURE OF THE AGENCY
A. DCS shall establish child welfare policy and determine statewide standards. DCS shall take all reasonable steps necessary to ensure that statewide policies, standards and practices are implemented and maintained in each region of the state and that each region uses uniform forms, data collection, and reporting. Regions retain the right to develop and use forms and data instruments to address issues of local concern.
MAINTENANCE.
III. REPORTING ABUSE AND NEGLECT
A. DCS’s system for receiving, screening and investigating reports of child abuse and neglect for foster children in state custody shall be adequately staffed and all reports of abuse or neglect of class members shall be investigated in the manner and within the time frame provided by law.
MAINTENANCE.
B. All reports of abuse or neglect of foster children occurring in DCS and private provider placements (whether congregate care or resource home) shall also be referred to and reviewed by the relevant DCS unit or units responsible for quality assurance and placement and provider oversight, with such referral and review completed within ninety days. The quality assurance unit(s) shall be responsible for ensuring that appropriate corrective action is taken with respect to the placement and/or private provider (including, if appropriate, closing of the placement and/or contract termination), and shall determine whether a pattern of abuse or neglect exists within the placement or the private provider’s array of placements that contributed to the abuse and neglect. The results of the reviews required in this section shall be incorporated into the performance based contracting provided by DCS.
MAINTENANCE.
C. The quality assurance division shall ensure that a tracking and reporting process is in place to identify any case in which there have been three or more reports of neglect or abuse concerning a particular caregiver for a particular class member and that all such cases are subject to special administrative reviews.
MAINTENANCE.
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IV. REGIONAL SERVICES
A. Each region shall have available a full range of community-based services to support and preserve families of foster children in state custody, and to enable children to be reunified with their families safely and as quickly as possible.
MAINTENANCE.
B. Each region shall have available or shall develop a full range of community-based family services, which shall be available to:
1. Foster families for whom children have established a significant, beneficial emotional bond and which provide the possibility of long-term stability and permanence, but which are in danger of disrupting without intensive home-based crisis intervention services;
MAINTENANCE.
2. Families to whom children in foster care could be returned safely with the availability of intensive family services for a transition period; and
MAINTENANCE.
3. Adoptive families in danger of disrupting without intensive home-based crisis intervention services.
MAINTENANCE.
V. STAFF QUALIFICATIONS, TRAINING, CASELOADS, AND SUPERVISION
A. All persons applying for positions with DCS or a private provider agency which involve any contact with children shall be required to submit to a criminal records check and a DCS abuse and neglect records screening before beginning training or employment. All DCS and private provider staff are subject to the provisions of DCS administrative policy on Employee Background Checks, which provide specific requirements for finger-printing, background checks, employment and disciplinary action. All DCS staff are also subject to the DCS administrative policy on employee disciplinary actions related to allegations or convictions of criminal acts. This section is not applicable to employees convicted of delinquent offenses.
MAINTENANCE.
B. Educational background requirements for DCS case managers responsible for cases of class members and for private provider staff with comparable
8
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responsibilities shall be as follows:
1. Case managers I and II shall have a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science.
MAINTENANCE.
2. Case managers III shall have at least a bachelor’s degree, with employment preference given to applicants holding a bachelor’s degree in social work or a related behavioral science, and two years experience in providing child welfare services. A master’s degree in social work or a related behavioral science may substitute for one year experience in providing child welfare services.
MAINTENANCE.
3. All case manager supervisors (including team leaders and team coordinators) shall have a minimum of a master’s degree in social work or a related behavioral field with a child and family focus (excluding criminal justice) and at least three years experience as a child welfare case worker; however, an additional 2 years of providing child welfare services may substitute for a master’s degree.
MAINTENANCE.
C. Requirements for retention, promotion, and assumption of case responsibilities for DCS case managers responsible for cases of class members and for private provider staff with comparable responsibilities shall be as follows:
1. No case manager shall be promoted until completing a job performance evaluation that includes evaluation of performance of the case management requirements of this agreement. Failure to receive a satisfactory job performance evaluation will result in progressive disciplinary action, up to termination if necessary.
MAINTENANCE.
2. No case manager shall assume any responsibility for a case, except as part of a training caseload, until after completing pre-service training and after passing a skills-based competency test.
MAINTENANCE.
3. Every case manager supervisor shall complete basic supervisor training and pass a skills-based competency assessment geared specifically to child
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welfare supervision. Such training will begin within two weeks of the supervisor assuming supervisory responsibility and be completed within six months.
MAINTENANCE.
D. Pre-service and in-service training of DCS case managers responsible for cases of class members and private provider case managers with comparable responsibilities shall be as follows:
1. A minimum of 160 hours of pre-service training, including instructional and supervised field training;
MAINTENANCE.
2. For non-supervising case managers, a minimum of 40 hours of annual inservice training;
MAINTENANCE.
3. For new supervisors, a minimum of 40 hours of in-service training directed at the supervision of child welfare case workers, to begin within two weeks of assuming supervisory responsibility and to be completed within six months; and
MAINTENANCE.
4. For supervisors, a minimum of 24 hours of in-service training each year.
MAINTENANCE.
E. DCS shall have a full-time qualified director of training and shall maintain sufficient staffing, budget funds, and other resources to provide comprehensive child welfare training to ensure that all persons responsible for children in the plaintiff class will have sufficient training to permit them to comply with the relevant mandates of this agreement, DCS policy, and reasonable professional standards.
MAINTENANCE.
F. Prior to contracting with any private provider, DCS will review, approve, and monitor the curriculum for caseworker pre-service and in-service training to assure that general content areas are appropriate to the work being performed by the agency. Where casework activities mirror the duties of the DCS case manager, the curriculum will correspond with DCS pre-service and in-service training.
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MAINTENANCE.
G. The state shall provide stipends and other incentives to support graduate work to enable the state to hire and retain case managers with undergraduate and graduate degrees in social work and related fields. The state will periodically assess whether salary increases are necessary to ensure that Tennessee is competitive with neighboring states in its compensation for case managers and case manager supervisors.
MAINTENANCE.
H. The Department shall develop and implement a performance evaluation process which includes an annual assessment of the extent to which case managers and case manager supervisors are handling their case responsibilities consistently with the provisions of this agreement, DCS policy, and reasonable professional standards. The performance evaluation process shall ensure the identification of case managers needing additional training and that appropriate action (including reassignment or termination) is taken with respect to case managers who are not performing at acceptable levels.
MAINTENANCE.
I. Prior to contracting or renewal with any private provider, the Department will ensure that each private provider agency has implemented an appropriate performance evaluation process to ensure the competency of those staff with responsibilities comparable to DCS case managers.
MAINTENANCE.
J. A single case manager assigned to a case shall have full responsibility for that case, including working with the child and family and to visit with both for the purposes of assessing and meeting their needs; determining and implementing a permanency plan; supervising, supporting and assuring the stability of the child’s placement; and assuring a safe, adequate and well-planned exit from foster care. A DCS case manager shall be assigned to every case. If a private provider is engaged in the case, the DCS and private provider case managers shall collaborate to ensure compliance with this agreement.
MAINTENANCE.
Any DCS case manager responsible for the case of at least one class member, and private provider staff with comparable responsibilities, shall not have case responsibility for more than:  15 individual children in DCS custody if the case manager is a case manager
I;
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 20 individual children in DCS custody if the case manager is a case manager II or III with no supervisory responsibility; and
 10 individual children in DCS custody if the case manager III supervises one or two lower level case managers.
MAINTENANCE.
If DCS decides to propose the use of workers carrying a mix of custodial and noncustodial cases, a weighted equivalent caseload standard will be determined in consultation with the TAC.
MAINTENANCE.
K. Supervision by DCS case managers responsible for cases of any class member and private provider staff with comparable responsibilities shall be as follows:
 A case manager IV or team coordinator may supervise up to 5 lower level case managers and shall not carry their own caseloads; and
 A case manager III may supervise up to 4 lower level case managers.
MAINTENANCE.
A case manager III can only be given supervisory responsibility in circumstances in which the caps on supervisory caseloads dictate that an additional case manager IV would have less than a full supervisory case load. No case manager III supervising more than 2 lower level case managers can have a caseload.
MAINTENANCE.
L. When a case manager leaves the agency, his or her cases shall be reassigned within one business day. No cases shall be uncovered at any time. Except in documented emergency situations, or when the case manager leaves without prior notice, all transfers of cases between case managers shall take place after a faceto-face meeting, including the departing and the receiving case managers’ supervisors, to discuss the case. The departing case manager shall make every effort to introduce the receiving case manager, in person, to the child and the child’s parents.
MAINTENANCE.
M. Any region with an annual case worker turnover rate that exceeds 10% in which cases are either uncovered or are being reassigned to workers at the caseload cap, shall maintain a pool of trained workers to assume the caseloads of departing workers.
MAINTENANCE.
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N. All documentation of contacts or developments in a child’s case shall be added to the child’s case file within 30 days. The case files of class members shall contain adequate documentation of the services provided, progress, placement changes, and authorizations of approval for placements, treatment and services.
MAINTENANCE.
O. Any other child care workers employed by any child care facility or private provider shall have a minimum of a high school diploma, with preference given to those applicants with one year of previous child welfare-related experience.
MAINTENANCE.
VI. PLACEMENT AND SUPERVISION OF CHILDREN
A. Placement Standards and Exceptions
1. All children shall be placed according to the following standards:
a. All children shall be placed within their own region or within a 75mile radius of the home from which the child entered custody, unless (a) the child’s needs are so exceptional that they cannot be met by a family or facility within the region, (b) the child needs replacement and the child’s permanency goal is to be returned to his parents who at that time reside out of the region, or (c) the child is to be placed with a relative out of the region.
MAINTENANCE.
b. Children shall not remain in any emergency or temporary facility, including but not limited to emergency shelters, for more than 30 days. Children shall not be placed in more than one such facility within any 12 month period. An exception to the multiple placement limit within any 12-month period may be made (a) for an individual placement episode for a maximum of 5 days for runaways and children facing a direct threat to their safety, or who are a threat to the safety of others, where immediate removal is necessary, or (b) for a single additional placement in a primary treatment center (PTC) for up to a maximum of 15 days, if a child’s behavior has changed so significantly that placement for the purposes of assessment is critical for the determination of an appropriate placement.
MAINTENANCE.
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c. Siblings who enter placement at or near the same time shall be placed together, unless (a) doing so is harmful to one or more of the siblings, (b) one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or (c) the size of the sibling group makes such placement impractical notwithstanding diligent efforts to place the group together. These efforts will be documented and maintained in the case file.
MAINTENANCE.
d. No child shall be placed in a resource home if that placement will result in (a) more than three foster children in the home, (b) more than six children, including the resource family’s natural and/or adopted children, in the home, or (c) more than 3 children under the age of 3 in the home; unless either (a) such placement is in the best interests of all the foster children in the home, or (b) the child is part of a sibling group and there are no other children in the home.
MAINTENANCE.
e. No child under six years of age shall be placed in a placement other than a resource home unless the child has exceptional needs which cannot be met in a resource home but which can be met by the congregate care facility in which the child is placed.
MAINTENANCE.
f. No child shall be placed in a residential treatment center or any other group care setting with a capacity in excess of eight children unless (a) the child’s needs can be met in that specific facility and (b) that facility is the least restrictive placement that could meet the child’s needs.
MAINTENANCE.
g. No child in DCS physical or legal custody in foster care shall be placed, by DCS or with knowledge of DCS, in a jail, correctional or detention facility unless such child has been charged with a delinquency charge or unless otherwise placed or ordered by the court. DCS shall work with law enforcement and court officials to ensure that DCS is immediately notified of any child in DCS legal custody who has been placed in a jail, correctional or detention facility.
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MAINTENANCE.
h. DCS shall not place any child determined by a DCS assessment to be at high risk for perpetrating violence or sexual assault in any foster care placement with foster children not so determined.
MAINTENANCE.
i. Children for whom the permanency goal is adoption should, whenever possible, be placed with a family in which adoption is a possibility.
MAINTENANCE.
j. DCS shall only contract for placements or services with licensed contractors or subcontractors.
MAINTENANCE.
2. For provisions VI.A.1.a., b., c., d., e., and f. above, if DCS approves a placement that does not meet the applicable standard, the Regional Administrator shall either:
a. Indicate that the placement meets one of the permissible exceptions under the standards and, if so, ensure that the facts supporting that exception are documented in the case file; or
b. Indicate that the placement does not meet one of the permissible exceptions, document the reasons that the placement was nevertheless approved, and indicate any further action to be taken with respect to that placement.
MAINTENANCE.
3. The quality assurance division, using aggregate data and case reviews, shall be responsible for tracking, reporting, and ensuring that appropriate action is taken with respect to placements that do not comply with the placement standards in Section VI.A.1.
MAINTENANCE.
B. All children in DCS custody shall receive an assessment, including a medical evaluation and, if indicated, a psychological evaluation, using a standardized assessment protocol. The assessment may take place prior to custody, but no later
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than 30 days after the child comes into custody. As soon as the assessment is completed, the child’s placement shall be reevaluated to ensure that it meets the child’s needs.
MAINTENANCE.
C. All class members shall have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified. Children shall be placed in community schools whenever possible. DCS shall assign a full time educational specialist in each region, and twelve regional lawyers with special expertise in educational issues, to ensure that individual children in DCS custody have access to a reasonable and appropriate education, including special education services, the need for which shall be timely identified.
MAINTENANCE.
D. Psychotropic medication shall not be used as a method of discipline or control of a child. When possible, parental consent shall be obtained for the use of medically necessary psychotropic medication. If a parent is unavailable to provide consent, the regional health unit nurse shall review and consent to medically necessary psychotropic medication. Regional health unit nurses shall ensure that each of their consents is appropriately recorded, whether a child is placed in a DCS placement or through a private provider. The Medical Director shall oversee and ensure compliance with the Department’s policies regarding psychotropic medications.
MAINTENANCE.
E. An appropriately qualified Medical Director shall be responsible for revising, updating, and monitoring the implementation of policies and procedures surrounding all forms and uses of physical restraint and isolation/seclusion of class members, and shall be authorized to impose corrective actions. All uses of physical restraint in any placement, and all uses of isolation/seclusion in group, residential, or institutional placements, shall be reported to and reviewed by the quality assurance division and made available to the licensing unit and the Medical Director for appropriate action.
MAINTENANCE.
F. DCS shall have a full range of independent living services and shall provide sufficient resources to provide independent living services to all children in the plaintiff class who qualify for them.
MAINTENANCE.
G. DCS will maintain a child placement and private provider division within its
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Central Office. This division will provide consultation and technical assistance to regional staff on placement issues so that regional placement support units are able to carefully and appropriately match the child’s individual needs to a placement facility or foster family. DCS will maintain regional placement units with sufficient staff, automated information and tracking capabilities, and other resources to ensure that all children requiring placement are placed promptly, appropriately, and in accordance with their needs.
MAINTENANCE.
H. All children in the plaintiff class shall receive visits from the DCS case manager responsible for their case, whether the child is placed through a program directly run by DCS or through a private provider, as follows:
1. For children in DCS foster homes, worker-child visiting shall mean a faceto-face visit between the child’s DCS case manager and the child. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Visits shall be made as frequently as is necessary to assure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine whether the child’s needs are being met and service goals are being implemented. All visits shall include a private meeting between the case manager and the child out of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
MAINTENANCE.
2. For children in a foster home or facility operated by a private provider:
a. Private provider case worker: DCS shall require and ensure that the private provider case worker visits the child as frequently as necessary to ensure the child’s adjustment in placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented. Visits may take place in the child’s placement, at school if the child is of school age, in the case manager’s office, or in another appropriate setting. Worker-child visiting shall mean a face-to-face visit between the child’s private agency case worker and the child. All visits shall include a private meeting between the private provider case worker and the child out
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of the presence of the foster parents or other caregiver, except when the child is an infant. There shall be at least 6 face-to-face visits during the first two months after a child’s entrance into custody in a foster home or facility operated by or under a private contract agency, and at least 3 of these visits shall take place in the child’s placement. Following the first two months after a child’s entrance into custody, there shall be at least 2 face-to-face visits each month. One of these two face-to-face visits must take place in the caregiver’s home.
MAINTENANCE.
b. DCS case manager: The DCS case manager shall visit each child in a foster home or facility operated by a private provider as frequently as necessary to ensure the child’s adjustment to the placement, to ensure the child is receiving appropriate treatment and services, and to determine that the child’s needs are being met and service goals are being implemented, but at least once each month. Worker-child visiting shall mean a face-to-face visit between the child’s DCS case manager and the child in the child’s placement and, except when the child is an infant, shall include a private meeting between the DCS case manager and the child outside the presence of the foster parents or other caregiver, the facility staff and the private provider case worker. The private provider worker and DCS case manager shall meet face-to-face at least once every three months in order to have substantial discussions with each other, the foster parent(s) or other caretaker, and the child, if age appropriate.
MAINTENANCE.
VII. PLANNING FOR CHILDREN: MINIMUM STANDARDS FOR ALL CHILDREN AND YOUTH
A. DCS shall maintain and update policies and procedures that establish a best practices planning process, as set forth in the Principles of this agreement, for all foster children in DCS custody.
MAINTENANCE.
B. A trained, full-time or back-up facilitator shall participate in every Initial CFTM and Placement Stability CFTM. The following persons shall be Child and Family Team members as appropriate: (1) private provider agency worker; (2) guardian ad litem (GAL); (3) court appointed special advocate (CASA); (4) resource parents; and (5) the child’s parents or other relatives or fictive kin. DCS shall provide reasonable advance notice of CFTMs to the GAL and CASA worker.
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Any child 12 years old or older shall participate in the meeting, unless extraordinary circumstances exist, and are documented in the case record, as to why the child’s participation would be contrary to his or her best interests.
MAINTENANCE.
C. The Department shall begin the process of building a team, assessing, and convening a formal meeting prior to children entering state custody, except when an emergency removal is warranted. In the case of an emergency removal, an Initial CFTM shall be convened no later than seven (7) days after a child enters state custody. Efforts to ensure the parents’ participation shall include providing transportation and/or child care and/or a brief rescheduling, and shall be documented in the child’s case file.
MAINTENANCE.
D. The Initial Permanency Planning CFTM shall occur within thirty (30) calendar days of a child entering custody. If the parents cannot be located or refuse to meet with the worker, the DCS case manager shall document all efforts made to locate the parents and to ensure that the meeting takes place. All services documented in the record as necessary for the achievement of the permanency goal shall be provided within the time period in which they are needed. Within sixty (60) calendar days of a child entering custody, an individualized, completed and signed permanency plan for that child must be presented to the court. Biological parents shall have the meaningful opportunity to review and sign a completed handwritten or typewritten plan at the conclusion of the Initial Permanency Planning CFTM or before the plan is submitted to the court.
MAINTENANCE.
E. The Department shall convene a Placement Stability CFTM prior to any child or youth potentially disrupting from a placement while in state custody, or, in the event of an emergency change in placement, as soon as team members can be convened, but in no event later than fifteen (15) days before or after the placement change.
MAINTENANCE.
F. The DCS supervisor assigned to the case shall participate in the Initial CFTM, the Initial Permanency Planning CFTM, and the Discharge Planning CFTM. At minimum, the supervisor will participate in one CFTM every six months for each child on their supervisory caseload. For all other CFTMs, the supervisor shall make a decision about his or her participation based on the complexity of the case; the availability of other supports, such as a full-time or skilled facilitator; and the case manager’s experience. DCS shall develop a process for supervisors to review, monitor and validate the results of CFTMs to ensure supervisors
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remain engaged and responsible for quality casework.
MAINTENANCE.
G. No child shall be assigned a permanency goal of Planned Permanent Living Arrangement (PPLA) unless it is consistent with the January 2008 PPLA Protocol.
MAINTENANCE.
H. Independent living is no longer used, and shall not be used, as a permanency goal, but rather is used as a service array to enable older youth to transition into independent adult life.
MAINTENANCE.
I. Children with an initial goal of return home may also have another concurrently planned permanency goal. Record keeping and tracking for any child in the class with more than one concurrently planned permanency goal shall be consistent with a goal of return home until return home is no longer an option.
MAINTENANCE.
J. The child’s DCS case manager and his or her supervisor shall have an ongoing responsibility to assure that the child’s permanency goal is appropriate or to change it if it is not, to assure that the child’s services and placement are appropriate and are meeting the child’s specific needs, to assure that the parents and other appropriate family members are receiving the specific services mandated by the permanency plan and that they are progressing toward the specific objectives identified in the plan, and to assure that any private service providers identified in the plan or with whom the child is in placement are delivering appropriate services.
MAINTENANCE.
K. Whenever the Permanency Plan goal needs to be revised a CFTM shall be convened. The child’s permanency plan shall be reviewed and updated at CFTMs at least every three months. These meetings must be separate and distinct from any court hearings, foster care review board meetings or other judicial or administrative reviews of the child’s permanency plan.
MAINTENANCE.
L. DCS shall recommend to the Juvenile Court a 90-day trial home visit for all children for whom a decision is made to return home or to be placed in the custody of a relative, before the child or youth is projected to exit state custody.
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An exception to this general rule shall be allowed, based on specific findings and the signed certification of the case manager, supervisor and regional administrator for the child, that a shorter trial home visit of no less than 30 days is appropriate to ensure the specific safety and well-being issues involved in the child’s case.
MAINTENANCE.
M. A Discharge Planning CFTM shall be convened within thirty (30) days of a child returning home on trial home visit, exiting custody to a newly created permanent family, or aging out of the system. If exiting custody is determined to be inappropriate, DCS shall make the appropriate application to extend the child's placement in the custody of DCS before the expiration of the trial home visit. Participants in the Discharge Planning CFTM will identify all of the services necessary to address the issues that required removal, to assure the child’s continued safety, and to support the child or youth and family and the trial home visit. During any trial home visit, the child’s case manager shall visit the child in person at least 3 times in the first month, and twice per month for any remainder of the trial home visit period ordered by the court, and each visit shall occur outside the parent or other caretaker's presence. The case manager shall also contact service providers, and shall visit the school of all school age children at least once each month during the trial home visit period, shall interview the child's teacher, and ascertain the child's progress in school and whether the school placement is appropriate.
MAINTENANCE.
VIII. FREEING A CHILD FOR ADOPTION
A. The process of freeing a child for adoption and seeking and securing an adoptive placement shall begin as soon as adoption becomes the child’s permanency goal but in no event later than as required by federal law. The adoption process shall begin immediately for all children for whom a diligent search has failed to locate either parent and for whom no appropriate family member is available to assume custody.
MAINTENANCE.
B. DCS has replaced its process for making legal risk placements with policies and procedures for the “dual licensing” of resource families as foster parents and adoptive parents.
MAINTENANCE.
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C. DILIGENT SEARCHES AND CASE REVIEW TIMELINE
1. Diligent searches for parents and relatives of a child placed in state custody shall be conducted and documented according to DCS policy by the DCS case manager prior to the child coming into custody if possible but no later than 30 days after the child comes into custody, and thereafter as needed, but at least within three (3) months from when a child enters custody and again within six (6) months from when a child enters custody.
MAINTENANCE.
2. When parents have been indicated for severe abuse, a discussion with the DCS attorney shall take place within 45 days regarding whether to immediately seek to terminate parental rights. The decision shall be documented in the child’s case record.
MAINTENANCE.
3. Within nine (9) months of a child entering state custody, the permanency plans shall be reviewed with the DCS attorney to accomplish the following:
a. If the child is to return home or be placed in the custody of a relative, a timetable for unsupervised visits, trial home visits and hearings to be returned to the parent/relative shall be established.
MAINTENANCE.
b. If the child is not returning home, a timetable for providing documentation and information to the DCS attorney shall be established in order to file a termination of parental rights petition.
MAINTENANCE.
c. If the decision to file a TPR has been made, and the child is not in a pre-adoptive home, the case manager along with the members of the Child and Family Team shall continue to search for relatives as placement options.
MAINTENANCE.
4. If return home or other permanent placement out of custody (relative or guardianship) without TPR is inappropriate at both 12 and 15 months, a TPR petition shall be filed no later than 15 months after the child is placed in DCS custody, unless there are compelling reasons, which shall be documented on the child’s case file, for not doing so.
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MAINTENANCE.
5. The following series of time frames related to critical activities in the adoption process shall be followed as set forth in DCS policy:
a. Within 90 days of the permanency goal changing to adoption, the DCS attorney shall file the petition to terminate parental rights, unless there is a legal impediment, in which case the petition shall be filed as soon as possible once the legal impediment is resolved.
MAINTENANCE.
b. DCS shall take all reasonable steps to ensure that the date of the trial court order granting full guardianship shall be within eight (8) months of the filing of the TPR.
MAINTENANCE.
c. DCS shall take all reasonable steps to ensure that the date of the finalization of the adoption or transfer to permanent guardianship shall be within twelve (12) months of full guardianship.
MAINTENANCE.
d. All children who have been in custody for 15 months or more with no TPR petition filed shall be reviewed by the Commissioner or his or her designee.
MAINTENANCE.
6. A resource parent who has been providing appropriate foster care for a child for 12 months shall have a preference as an adoptive parent for that child, should the child become legally available for adoption.
MAINTENANCE.
D. FINDING OUR CHILDREN UNCONDITIONAL SUPPORTS (FOCUS) TEAMS
1. The FOCUS Team will ensure that all children or youth entering full guardianship each month will be reviewed to determine whether or not these children or youth have a permanent family identified and that the needed supports and services are in place to ensure timely permanency.
MAINTENANCE.
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2. If there is a permanent family identified for the child, there will be an assessment regarding any barriers to permanency. If there are identified barriers to permanency, appropriate referrals will be made to the regions or private provider agency or agencies as may be needed and appropriate. Children and youth with an identified permanent family will be reviewed monthly to assess whether the identified permanent family is still a viable permanency option.
MAINTENANCE.
3. For children and youth without permanent families identified, the following steps will be taken to ensure timely permanency:
a. The Child and Family Team will ensure the development and implementation of the child or youth’s Individualized Recruitment Plan, which will include time frames, roles, and responsibilities;
MAINTENANCE.
b. The Child and Family Team will ensure that the child or youth is registered on ADOPT US Kids to help match the child or youth with potential families;
MAINTENANCE.
c. The Child and Family Team will ensure the use of archeological digs, family searches, interviews and other options to build a team of informal and formal supports to assist in finding permanency.
MAINTENANCE.
4. The FOCUS Team will monitor case progress, provide tracking and outcome data to measure the effectiveness of the FOCUS process in moving children and youth toward permanency, and use aggregate and qualitative data to report on trends that promote and prevent timely permanency for children. This will include reporting and analysis on those children and youth disrupting from placements while in full guardianship.
MAINTENANCE.
E. DCS shall maintain a system of adoption subsidies and post-adoptive services and provide notice of and facilitate access to those services at the earliest possible time to all potential adoptive families and resource families.
MAINTENANCE.
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IX. RESOURCE PARENT RECRUITMENT, RETENTION, AND APPROVAL
A. DCS shall establish and maintain a statewide, regional and local program of resource parent recruitment. Under Tennessee’s dual approval process, both foster and adoptive parents are considered to be resource parents. DCS will ensure the availability of a toll-free phone number in all regions of the state to provide information concerning the availability of adoption information, training, the approval process and children available for adoption.
MAINTENANCE.
B. DCS will develop and maintain standards to approve only appropriate resource families. All such approvals will be handled within the regions or by private provider agencies, which shall be adequately staffed and trained.
1. All inquiries from prospective resource parents shall be responded to within 7 days after receipt.
MAINTENANCE.
2. Home studies shall be completed within 90 days of completing the approved training curriculum, unless the applicant defaults or refuses to cooperate.
MAINTENANCE.
3. Identified staff persons will conduct exit interviews with all resource families who voluntarily resign as resource parents, and DCS shall issue annual reports on why resource families leave DCS and what steps are necessary to ensure their retention.
MAINTENANCE.
4. To the extent possible, DCS shall maintain a practice of using existing resource families to recruit and retain new resource families, and shall maintain a statewide and regional support system for resource families.
MAINTENANCE.
5. DCS shall provide adequate and appropriate respite services on a regional basis to resource parents with special needs children.
MAINTENANCE.
C. All resource parent room and board rates (including rates for DCS resource parents, private provider resource parents and certified relatives and kin) will at a
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minimum meet USDA standard and will be adjusted annually to be no lower than USDA standards for the cost of raising children within this region.
MAINTENANCE.
D. DCS shall provide specialized rates for DCS and private provider resource parents providing services to special needs children. DCS shall supply and shall ensure that private providers supply any specialized training necessary for the care of special needs children. DCS also will continue to contract with private providers for medically fragile and therapeutic foster care services.
MAINTENANCE.
E. DCS shall schedule resource parent training classes, including individual training as needed, every thirty days in every region at times convenient to prospective resource parents, who shall not receive placement of a child until completing such training. DCS may waive resource parent approval requirements for relatives and kin after completing a home visit and local criminal records check, but relatives and kin must complete all remaining approval requirements within 150 days of placement.
MAINTENANCE.
F. DCS shall ensure that the pool of resource families is proportionate to the race and ethnicity of the children and families for whom DCS provides placement and services, provided however that individual children shall be placed in resource families without regard to race or ethnicity.
MAINTENANCE.
X. STATEWIDE INFORMATION SYSTEM
A. DCS shall establish and maintain a statewide computerized information system for all children in DCS custody that is accessible in all regional offices and into which workers shall be able to directly enter data. The statewide computerized information system shall ensure data integrity and user accountability. The system shall have the necessary controls to prevent the duplication of data and to reduce the risk of incorrect or invalid data.
MAINTENANCE.
B. This system shall include uniform data presentation, including but not limited to AFCARS elements from DCS for all children in the plaintiff class. This system shall be audited periodically to ensure the accuracy and validity of the data. This system shall provide an immediately visible “audit trail” to the data base administrators of all information entered, added, deleted or modified, and shall
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have necessary security to protect data integrity. This system shall be capable of providing system-wide reports.
MAINTENANCE.
C. An intensive data clean-up process shall ensure the accuracy of all data, including but not limited to data on all individual children in the plaintiff class, in the statewide computerized information system.
MAINTENANCE.
XI. QUALITY ASSURANCE
A. DCS shall maintain a statewide quality assurance program, which shall be directed by a quality assurance division. The quality assurance division shall assure that, in addition to external case file reviews and monitoring, there is an internal method to perform special administrative case record reviews. The quality assurance division shall track, coordinate, and integrate all DCS quality assurance activities. The quality assurance division shall provide critical attention to the follow-up needed to improve services and outcomes.
MAINTENANCE.
B. This division shall provide regular reports and shall also conduct specialized case record reviews on issues relevant to this agreement and other issues affecting the care of children.
MAINTENANCE.
C. The division shall be adequately staffed and shall receive special training to fulfill its responsibilities.
MAINTENANCE.
D. At a minimum, the quality assurance division shall, once every 12 months, review a statistically significant number of cases from each region. These case file reviews shall include interviews and an independent assessment of the status of children in the plaintiff class. As part of this annual review, the quality assurance division, central office, and other designated staff shall develop a measure of appropriate and professional decision-making concerning the care, protection, supervision, planning and provision of services and permanency for children in the class. This measure shall be utilized in conjunction with the case file reviews to measure DCS’s performance.
MAINTENANCE.
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E. The quality assurance division, utilizing aggregate data and case reviews as appropriate, shall be responsible for tracking, reporting and ensuring that appropriate action is taken with respect to the following categories of cases:
1. Children who have experienced three different placements, excluding a return home, within the preceding 12 months.
MAINTENANCE.
2. All cases in which a child has been in more than two shelters or other emergency or temporary placements within the past 12 months, and in all cases in which a child has been in a shelter or other emergency or temporary placement for more than 30 days.
MAINTENANCE.
3. Children with a permanency goal of return home that has remained in effect for more than 24 months.
MAINTENANCE.
4. Children who have returned home and reentered care more than twice and have a permanency goal to return to that home.
MAINTENANCE.
5. Children with a sole permanency goal of adoption for more than 12 months for whom a petition to terminate parental rights has not been filed.
MAINTENANCE.
6. Children with a sole permanency goal of adoption for more than one year who have not been placed in an adoptive home.
MAINTENANCE.
7. Children more than 60 days in custody who do not have a permanency plan.
MAINTENANCE.
8. Children for whom the permanency goal has not been updated for more than 12 months.
MAINTENANCE.
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9. Children who have been in custody for 15 months or more with no TPR petition filed.
MAINTENANCE.
F. DCS shall implement the recommendations in the Racial Disparity Report set forth in the implementation plan approved by the Court on August 19, 2004.
MAINTENANCE.
G. The TAC will continue to report on the status of all foster children in DCS custody who entered DCS custody prior to October 1, 1998.
MAINTENANCE.
XII. SUPERVISION OF PRIVATE PROVIDER AGENCIES
A. All private providers which provide placements or services to class members shall only do so pursuant to annual performance-based contracts.
MAINTENANCE.
B. DCS shall only contract with those private providers that meet the provisions of this agreement that specifically apply to those agencies and that meet state standards governing the operation of child care facilities. These state standards shall reflect reasonable professional standards. DCS shall not contract with any private provider that has not been licensed by the State to provide placements for children in the plaintiff class.
MAINTENANCE.
C. DCS shall not contract and shall immediately cease contracting with any program or private provider that gives placement preference by race, ethnicity, or religion.
MAINTENANCE.
D. Any agency or private provider contracting with DCS shall be prohibited from refusing to accept a child referred by DCS as appropriate for the particular placement or program.
MAINTENANCE.
E. DCS shall maintain sufficient staff to allow for appropriate monitoring and oversight of private providers. All private providers supplying placements for children in the plaintiff class shall be inspected annually by DCS staff with
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relevant provider monitoring and oversight responsibilities in an unannounced visit and DCS shall determine in a written report whether the private provider complies with state licensing standards. The units responsible for the various aspects of private provider monitoring and oversight, including the licensing unit, shall collaborate with the DCS quality assurance division and the central office division responsible for child placement and private provider contracts to determine agency compliance with the terms of this agreement.
MAINTENANCE.
F. DCS shall not contract with any private provider, for which any owner, member of the board of directors, or member of the board of trustees also holds any other position that may influence the placements of class members. Such positions include, but are not limited to, juvenile court judges, magistrates, or other court officers. All future contracts or contract renewals shall contain this policy as a binding term of the contract.
MAINTENANCE.
XIII. FINANCIAL DEVELOPMENT
A. DCS shall develop and implement policies and procedures to maximize funding through Titles IV-B and IV-E of the Adoption Assistance and Child Welfare Act of 1980.
MAINTENANCE.
B. All funds remitted for children in the plaintiff class to the State of Tennessee by the United States Department of Health and Human Services, as described above, shall be committed exclusively to the provision of services and staff serving class members. It is the intent of the state that dollars committed to DCS for the provision of services and resources to benefit children in the class and children at risk of entering the class shall not be decreased if efforts to maximize federal dollars result in additional federal funding. Nothing in this provision shall reduce the defendants’ financial obligations to comply with the terms of this agreement.
MAINTENANCE.
C. DCS shall maintain an appropriate financial management system capable of ensuring timely and accurate payments to family foster homes, adoptive homes, and private providers.
MAINTENANCE.
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XIV. TECHNICAL ASSISTANCE COMMITTEE
A. A technical assistance committee (“TAC”) of no fewer than two and no more than four neutral experts in the child welfare field has been selected to assist the state to implement this agreement. The TAC shall be comprised of Judith Meltzer, Andrew Shookhoff, Paul Vincent and Steven D. Cohen. Should any of the TAC members become unavailable, the remaining TAC members will be authorized, but not required, to select replacements. Appointment of additional TAC members shall require the consent of the parties.
B. The TAC is to advise DCS on the child welfare policy, management and practice issues delineated in this agreement, as well as other issues which DCS or the TAC agree to consult on, and as set forth in Section XV, act as Monitor.
XV. MONITORING
A. The TAC shall continue in the role of independent Monitor that will evaluate, monitor and report on performance under the terms of this agreement until this Court’s jurisdiction terminates as described in Section XVIII.D. The TAC shall issue reports on performance under this agreement for the twelve-month period from January 1, 2010, through and including December 31, 2010, and for each six-month period thereafter. To inform its reports, the TAC will look first to existing DCS data and reports, and Defendants will provide the TAC all requested information and access to staff within DCS and the Executive Branch as the TAC deems necessary. The TAC is authorized to require DCS to create new reports on the status of implementation of and compliance with this agreement. The TAC shall continue to report on all subject areas that it has previously reported on in this action. The TAC agrees to respect the confidentiality of any documents that are in draft form or are otherwise privileged.
B. Plaintiffs shall have access from the TAC to all information made available to the TAC, and to all other information necessary to ensure compliance and enforcement of this agreement. If Plaintiffs become aware of information related to possible non-compliance that they wish to investigate, Plaintiffs shall notify the TAC, without any limitation to Plaintiffs’ right to access all information necessary to ensure compliance and enforcement of this agreement. Plaintiffs shall not initiate case file reviews unless necessary in connection with a motion for noncompliance or enforcement.
C. Defendants shall continue to fund the TAC’s monitoring and technical assistance functions. The TAC shall exercise final authority over its use and expenditure of monitoring and technical assistance funding.
D. The TAC, in consultation with the parties, shall determine and describe in each report the specific methodologies, which may include a combination of longitudinal and point-in-time data analysis, it has employed to meet it reporting
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requirements.
XVI. OUTCOME AND PERFORMANCE MEASURES
A. Child Welfare Outcomes
1. Reunification
At least 40.5% of all children who enter foster care in a 12-month period shall be discharged to permanency within 12 months of entering.
MAINTENANCE.
At least 66% of all children who enter foster care in a 12-month period shall be discharged to permanency within 24 months of entering.
MAINTENANCE.
2. Adoption Finalization
At least 75% of children in full guardianship shall have their adoption finalized or permanent guardianship transferred within 12 months of full guardianship.
MAINTENANCE.
3. Number of placements
At least 90% of children in care shall have had two or fewer placements within the previous 12 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
At least 85% of children in care shall have had two or fewer placements within the previous 24 months in custody, not including temporary breaks in placement for children who run away or require hospitalization and return to the same placement.
MAINTENANCE.
4. Length of time in placement.
At least 75% of the children in placement who entered after October 1, 1998, shall have been in placement for two years or less.
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MAINTENANCE.
No more than 17% of the children in placement shall have been in placement for between two and three years.
MAINTENANCE.
No more than 8% of the children in placement shall have been in placement for more than three years.
MAINTENANCE.
5. Reentry into placement
No more than 5% of children who enter care shall reenter within 1 year after a previous discharge.
MAINTENANCE.
6. Achievement measures upon discharge
At least 90% of the children who are discharged from foster care (excluding children on runaway) because they reached the age of 18 shall have at least one of the following apply at the time of discharge: earned a GED; graduated from high school; enrolled in high school, college, alternative approved educational program for special needs children, vocational training; or be employed full time.
MAINTENANCE.
B. Performance Indicators / Practice.
1. Parent-child visiting
a. The standard: For children in the plaintiff class with a goal of reunification, parent-child visiting shall mean a face-to-face visit with one or both parents and the child which shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record). The visit shall take place in the child’s home if possible or in as homelike a setting as possible, or for longer as otherwise required by the child’s permanency plan and reasonable professional standards. This standard does not apply to situations in which there is a court order prohibiting visitation or limiting visitation to less frequently than once every month. The child’s case manager may consider the wishes of a child (generally older
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adolescents) and document in the case file any deviation from usual visitation requirements.
MAINTENANCE.
b. At least 50% of all class members with a goal of reunification shall be visited face-to-face by one or both parents at least twice per month for at least one hour in as home-like a setting as possible, unless there is a court order to the contrary or the case manager has considered and documented the wishes of a child to deviate from this requirement.
MAINTENANCE.
c. For the remaining class members with a goal of reunification who are not visited twice per month, at least 60% shall be visited once a month in keeping with the standards of the preceding paragraph.
MAINTENANCE.
2. Placing siblings together
At least 85% of all siblings who entered placement during the reporting period shall be placed together, unless doing so is harmful to at least one of the siblings; a sibling has exceptional needs requiring placement in a specialized program or facility; or the size of a sibling group makes such placement impracticable despite diligent efforts to place the group together, in which event the case manager shall document immediate efforts to locate a suitable home in which to reunite the siblings.
MAINTENANCE.
3. Sibling visiting
a. The standard: For children who are not placed in the same home or facility as their siblings there shall be face to face visits between the child and any of his or her sibling(s) who are in the plaintiff class in the most home-like setting available. The visits shall take place in the parent’s home, the foster home in which one of the siblings is living, the home of a relative, or the most home-like setting otherwise available and shall occur as frequently as is necessary and appropriate to facilitate sibling relationships but no less frequently than once each month. The visiting shall take place for no less than one hour each time (unless the visit is shortened to protect the safety or well-being of the child as documented in the child’s case record), or more as otherwise required by the child’s
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permanency plan and reasonable professional standards. Reasonable exceptions to the frequency requirement shall include cases in which: (1) there is a court order prohibiting visitation or limiting visitation to less frequently than once every month; (2) visits are not in the best interest of one or more of the siblings and the facts supporting that determination are documented in the case file; (3) the case manager for at least one of the siblings has considered the wishes of the sibling (generally older adolescents) and deviates from this standard based on the child’s wishes; or (4) a sibling is placed out of state in compliance with the Interstate Compact on the Placement of Children and there is documentation of reasonable efforts by DCS to maintain sibling contact between in-state and out of state siblings, including consideration of placement near border states and efforts to arrange visits and for contact by telephone or other means. All exceptions, and all reasonable steps to be taken to assure that visits take place and contact is maintained, shall be documented in the case file.
MAINTENANCE.
b. At least 90% of all children in the class in placement who have siblings with whom they are not living shall visit with those siblings at least once a month during the reporting period at issue.
MAINTENANCE.
4. Filing a petition to terminate parental rights
At least 70% of children in the class with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within three months of the goal change to adoption.
MAINTENANCE.
Regardless of whether the Department meets or exceeds the standard in the preceding paragraph, 85% of all children with a sole permanency goal of adoption during the reporting period shall have a petition to terminate parental rights filed within 6 months of when the goal was changed to adoption.
MAINTENANCE.
5. Goal of Planned Permanent Living Arrangement
No more that 5% of children in the plaintiff class shall have a goal of Planned Permanent Living Arrangement.
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MAINTENANCE.
6. In-region placements
At least 85% of children in the class shall be placed within the region from which they entered placement or within a 75 mile radius of the home from which the child entered custody.
MAINTENANCE.
XVII. MODIFICATION
This agreement may be modified on the consent of the parties or upon appropriate motion filed with the court.
XVIII. ENFORCEMENT, TERMINATION AND EXIT
A. General Principles Guiding Enforcement
1. All of the provisions in this agreement are separately and independently enforceable. Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this agreement, or for violations relating solely to an individual child.
2. Unless otherwise specifically stated, all provisions of this agreement shall apply to all children in the class, regardless of whether they are in a DCS or private provider placement, and regardless of the type of placement.
3. Nothing in this agreement shall limit the right of the plaintiffs to seek from the court appropriate relief to remedy any violations of this agreement.
B. Dispute Resolution
1. With regard to all provisions in this agreement, the following process shall apply:
a. Prior to seeking judicial remedies for non-compliance, Plaintiffs shall notify the Defendants in writing if they believe Defendants are out of compliance with any provisions of this agreement.
b. The parties shall engage in a 30-day period of good faith negotiations in an effort to resolve the non-compliance issues and shall use the TAC to facilitate this process.
c. Plaintiffs may bypass the dispute resolution provisions of this agreement and seek immediate relief in court if Plaintiffs clearly
36
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demonstrate that DCS action or inaction in contravention of this agreement caused or is likely to cause an immediate and substantial risk of serious harm to children in the class.
C. Identification of “MAINTENANCE” Provisions
1. No later than thirty (30) days after the TAC issues each monitoring report pursuant to Section XV.A, the parties and the TAC shall meet and confer in an attempt to negotiate and agree upon which provisions in this agreement shall be identified as MAINTENANCE and which shall not. Such identification shall include keeping provisions previously identified as MAINTENANCE with that identification, removing the identification of MAINTENANCE from provisions that were previously identified as MAINTENANCE, and adding the identification of MAINTENANCE to provisions that were previously not identified as MAINTENANCE. The period of negotiation can be extended for one period of 10 days upon the consent of the parties.
2. If the identification of any provision(s) as MAINTENANCE (or not) remains in dispute, the parties shall refer the decision on such identification to the TAC, which shall issue its determination within thirty (30) days of the referral. The TAC’s decision shall be final, binding, and unappealable by the parties.
3. Within ninety (90) days after the TAC issues each monitoring report pursuant to Section XV.A., the parties shall file with the court a proposed joint modification to this agreement that includes any revised identification of provisions as MAINTENANCE.
D. Termination and Exit
1. This agreement shall remain in full force and effect until the court issues an order terminating jurisdiction over this action.
2. Once Defendants have achieved and simultaneously sustained MAINTENANCE status on all provisions in Sections II - XIII and XVI for a period of twelve (12) months, Defendants may request that the court issue an order terminating jurisdiction over all provisions of this agreement, except for Section XIX, by filing a Notice of Compliance and Proposed Order Terminating Jurisdiction with the court. If the Monitor’s reports show the required achievement and sustained maintenance status, Plaintiffs may only oppose such Notice and Proposed Order in the extraordinary circumstance in which specific evidence establishes such a serious threat to the sustained functioning of DCS that continued jurisdiction is required in the interests of justice.
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XIX. EXTERNAL ACCOUNTABILITY REPORTING STRUCTURE
A. Defendants, with input from the TAC and Plaintiffs’ counsel, shall develop an external accountability reporting center (the “Center”). DCS will fund and the Center will build the capacity to report publicly on DCS’s maintenance of program, policy and practice improvements under this agreement.
B. After the court terminates jurisdiction pursuant to Section XVIII.D over all provisions of this agreement except for this section, jurisdiction over this section shall continue for a period of eighteen (18) months.
C. Upon the court’s termination of jurisdiction pursuant to Section XVIII.D, the Center will begin its public reporting which shall include, at a minimum, semiannual reports on DCS performance under the terms of this agreement. DCS will provide the Center all data necessary to its function.
D. Defendants shall provide the financial resources required for the reasonable operation of the Center for a period of eighteen (18) months after the court terminates jurisdiction pursuant to Section XVIII.D of all provisions except this provision. Upon expiration of such eighteen (18) month period, Defendants shall file an unopposed Notice of Compliance with this Section XIX and a Proposed Order terminating jurisdiction over this Section.
XX. ATTORNEYS FEES AND EXPENSES
As prevailing parties in this lawsuit, Plaintiffs are entitled to recover and reserve the right to seek reasonable attorneys fees and expenses up to the date of this agreement and for all subsequent activities in this lawsuit to the extent authorized pursuant to 42 U.S.C. §1988.

DATED:

_J_u_ly__1_7_______, 2017 Nashville, TN

SO ORDERED:

_____________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

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APPROVED FOR ENTRY:
ATTORNEYS FOR PLAINTIFFS:
/s/ Ira Lustbader_______ IRA LUSTBADER (pro hac vice) DANIELE GERARD (pro hac vice) CHILDREN’S RIGHTS, INC. 88 Pine Street, Suite 800 New York, NY 10005 (212) 683-2210
/s/ David L. Raybin DAVID L. RAYBIN (TN BPR #003385) HOLLINS, RAYBIN AND WEISSMAN P.C. Suite 2200, Fifth Third Center 424 Church Street Nashville, TN 37219 (615) 256-6666
JACQUELINE B. DIXON (TN BPR #012054) WEATHERLY, MCNALLY AND DIXON, P.L.C. Suite 2260 424 Church Street Nashville, TN 37219 (615) 986-3377
OF COUNSEL FOR PLAINTIFFS:
ROBERT LOUIS HUTTON (TN BPR #15496) Glankler Brown, PLLC Suite 1700, One Commerce Square Memphis, TN 38103 (901) 525-1322
WADE V. DAVIES (TN BPR #016052) Ritchie, Dillard and Davies 606 W. Main Street, Suite 300 Knoxville, TN 37902 (865) 637-0661
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ATTORNEYS FOR DEFENDANTS: /s/ Alexander S. Rieger ALEXANDER S. RIEGER (TN BPR #29362) Deputy Attorney General General Civil Division P. O. Box 20207 Nashville, TN 37202 (615) 741-6420 /s/ Jonathan P. Lakey JONATHAN P. LAKEY (TN BPR #16788) PIETRANGELO COOK, PLC 6410 Poplar Avenue, Suite 190 Memphis, TN 38119 (901) 685-2662
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al., Plaintiffs,
v. BILL HASLAM, et al.,
Defendants.

) ) ) ) ) NO. 3:00-cv-0445 ) CHIEF JUDGE CRENSHAW ) ) )

ORDER Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period from November 1, 2016 to July 18, 2017. (Doc. No. 590.) Plaintiffs’ counsel seek a total of $226,428.63 for reasonable post-judgment attorneys’ fees and litigation expenses. Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and have not opposed Plaintiffs’ motion. In reaching this settlement of attorneys’ fees for the instant time period, the parties expressly agree that the parties respectively are reserving, and do not through this agreement waive, Plaintiffs’ right to seek fees in future requests, and Defendants’ right to contest and oppose any aspect of any future requests by Plaintiffs.1

1 This unopposed motion is presented in accordance with the Joint Motion for an Order Partially Terminating Jurisdiction and Partially Dismissing Case with Prejudice (Doc. No. 587), granted by this Court by Order dated July 18, 2017 (Doc. No. 589): “At the June 8, 2017 status conference, the Court inquired regarding any attorney’s fees. If the Court grants this Joint Motion, Plaintiffs will present to Defendants a request for fees and expenses for the most recent period from November 1, 2016 to the date partial exit is granted, to the extent authorized by 42 U.S.C. § 1988. . . . The parties will attempt to resolve this request for fees and expenses through negotiation as they have done repeatedly over the years of this action . . . and will either present an unopposed motion for this Court to consider or a disputed motion in the event agreement cannot be reached. If the Court grants this Joint Motion, any subsequent request for fees and expenses related to the remaining Section XIX will be addressed in similar fashion.” (Doc. No. 587 at 22 n.17.)

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Even though this Motion is unopposed, the Court has reviewed the request. The Court finds that the hours for which the Plaintiffs seeks reimbursement are well-documented and reasonable. The Court further finds that the rates supporting the full request (before the proposed negotiated settlement) are reasonable and comparable to those of attorneys and paralegals in the relevant “outof-town specialist” district in New York at their current levels of experience. The expense requests by Plaintiffs are also reasonable. Finally, the Court is convinced that the parties engaged in good faith settlement negotiations concerning Plaintiffs’ request for fees and expenses and have reached an arm’s length agreement on the fees and expenses submitted in this unopposed motion; as a result, they have avoided the time, expense, and judicial resources of a fully contested fee dispute.
Having previously found that application of Rule 23(h) does not require approval of notice, publication, and a hearing in connection with each of Plaintiffs’ periodic requests for fees (see Doc. No. 241), the Court finds that that notice, publication, and a hearing are not required in connection with this motion.
Having duly considered all papers submitted in connection with Plaintiffs’ motion for approval of attorneys’ fees and expenses, the Court hereby GRANTS Plaintiffs’ Unopposed Motion (Doc. No. 590) pursuant to Section XX of the April 2017 Modified Settlement Agreement and Exit Plan (Doc. No. 588), Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Within thirty days of the entry of this Order, Defendants shall pay a total of $226,428.63 to Children’s Rights, in complete payment and settlement of all attorneys’ fees and expenses for the period from November 1, 2016 to July 18, 2017.
IT IS SO ORDERED.
____________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Waverly D. Crenshaw, Jr. ) ) ) ) )

ORDER Plaintiffs have moved for approval of attorneys’ fees and expenses in this matter for the period from July 19, 2017 to December 31, 2018.1 Plaintiffs’ counsel seek a total of $35,142.84 for reasonable post-judgment attorneys’ fees and litigation expenses. In their motion, Plaintiffs’ counsel has stated that this is their final request for attorneys’ fees and expenses in this matter. With the understanding that this is Plaintiffs’ counsel’s last request, Defendants have agreed to the amount of requested fees and expenses after arm’s length negotiations between the parties and have not opposed Plaintiffs’ motion.

1 This unopposed motion is also presented in accordance with the Joint Motion for an Order Partially Terminating Jurisdiction and Partially Dismissing Case with Prejudice (Dkt. No. 587), granted by this Court by Order dated July 18, 2017 (Dkt. No. 589): “At the June 8, 2017 status conference, the Court inquired regarding any attorney’s fees (Transcript, Dkt. No. 586, at p. 14). If the Court grants this Joint Motion, Plaintiffs will present to Defendants a request for fees and expenses for the most recent period from November 1, 2016 to the date partial exit is granted, to the extent authorized by 42 U.S.C. § 1988. (See Dkt. No. 577 (approving fees for the period November 1, 2015 to October 31, 2016).) The parties will attempt to resolve this request for fees and expenses through negotiation as they have done repeatedly over the years of this action (see Dkt. Nos. 241, 252, 257, 273, 279, 285, 291, 403, 428, 440, 482, 508, 538, and 560 approving negotiated fees and expenses), and will either present an unopposed motion for this Court to consider or a disputed motion in the event agreement cannot be reached. If the Court grants this Joint Motion, any subsequent request for fees and expenses related to the remaining Section XIX will be addressed in similar fashion.” Joint Motion for an Order Partially Terminating Jurisdiction and Partially Dismissing Case with Prejudice (Dkt. No. 587) at 22, fn. 17, emphasis added.
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Having duly considered all papers submitted in connection with Plaintiffs’ final motion for approval of attorneys’ fees and expenses, the Court hereby grants Plaintiffs’ motion for $35,142.84 for reasonable post-judgment attorneys’ fees and litigation expenses pursuant to Section XX of the April 2017 Modified Settlement Agreement and Exit Plan (Dkt. No. 588), Federal Rule of Civil Procedure 23(h), Local Civil Rule 54.01(b), and 42 U.S.C. § 1988. Having previously found that application of Rule 23(h) does not require approval of notice, publication, and a hearing in connection with each of Plaintiffs’ periodic requests for fees, the Court further orders that notice, publication, and a hearing are not required in connection with this motion.
Within 30 days of the entry of this ORDER, and before the court enters a final order dismissing this action, Defendants shall pay a total of $35,142.84 to Children’s Rights, in complete payment and settlement of all fees and expenses for the period from July 19, 2017 to December 31, 2018.
IT IS SO ORDERED. ____________________________________ WAVERLY D. CRENSHAW, JR. Chief United States District Judge
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRIAN A., et al. Plaintiffs, v.
BILL HASLAM, et al. Defendants.

) ) ) Civ. Act. No. 3:00-0445 ) Judge Waverly D. Crenshaw, Jr. ) Magistrate Judge Joe B. Brown ) ) ) )

ORDER DISMISSING CASE WITH PREJUDICE AND TERMINATING JURISDICTION
Plaintiffs filed this federal civil rights class action on May 10, 2000 on behalf of a class “consisting of all foster children who are or will be in the custody” of the Tennessee Department of Children’s Services (“DCS”). On July 27, 2001, pursuant to mediation ordered by the Court (doc. nos. 52, 56, 57, 59), the parties entered into a Settlement Agreement approved by the Court (doc. nos. 109-112). The Settlement Agreement set standards to improve resources, oversight processes and outcomes. The Court appointed monitors, the Technical Assistance Committee (the “TAC”), to assess progress and issue periodic reports.
On November 10, 2010, the parties to this litigation jointly stipulated and agreed to, and requested the Court to approve, the 2010 Modified Settlement Agreement and Exit Plan. [Doc. No. 410, the “2010 Joint Stipulation”]. The 2010 Modified Settlement Agreement and Exit Plan (the “2010 Exit Plan”) was attached to the 2010 Joint Stipulation as Exhibit A, and the Court approved the 2010 Exit Plan (doc. no. 411). The 2010 Exit Plan superseded and replaced the parties’ prior settlement agreement, identified Defendants’ ongoing obligations, and set forth

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what Defendants had to achieve for the Court to terminate its jurisdiction over this matter and dismiss the captioned litigation.
The 2010 Exit Plan required Defendants to achieve MAINTENANCE with regard to all provisions in Sections II-XIII and XVI of the 2010 Exit Plan (the “Required Provisions”). See 2010 Exit Plan, §XVIII.D.2. Further, that exit plan provided that once Defendants achieved MAINTENANCE with one-hundred percent of the Required Provisions and sustained MAINTENANCE for twelve (12) consecutive months, the Court would terminate its jurisdiction over all provisions of the exit plan except for Section XIX. Id.
On July 17, 2017, this Court entered an Order Partially Terminating Jurisdiction and Partially Dismissing Case with Prejudice. (Doc. No. 589 (the “Order of Partial Dismissal”).) In the Order of Partial Dismissal, the Court ordered, adjudged and decreed that Defendants achieved MAINTENANCE with all Required Provisions no later than December 31, 2015; that Defendants sustained MAINTENANCE with all Required Provisions throughout the full calendar year of 2016; that Defendants had met their obligations as described in the pertinent exit plan, specifically as contemplated in Section XVIII.D.2; and, as a result, the Court terminated its jurisdiction in this litigation with regard to all matters except those obligations set forth in Section XIX of the exit plan and made clear that the Court would continue to exercise that limited jurisdiction solely with regard to Section XIX of the exit plan and that this limited jurisdiction would continue only for eighteen (18) months following the entry of the Order of Partial Dismissal. (Id. at 4-5, numbered paragraphs 1-5.) Consistent with the 2017 Exit Plan, the Court further directed Defendants to, at the conclusion of this eighteen (18) month period, “file an unopposed Notice of Compliance with . . . Section XIX and a Proposed Order” terminating
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this Court’s jurisdiction over Section XIX of the exit plan and dismissing this litigation. (Id. at 5, numbered paragraph 5.)
Eighteen (18) months now have passed since the Order of Partial Dismissal was entered. Moreover, as set forth in this Court’s findings immediately below, this Court FINDS that Defendants have fulfilled all of their obligations under Section XIX of the 2017 Exit Plan.
On January 17, 2019, Defendants filed an Unopposed Notice of Compliance with Section XIX of the 2017 Modified Settlement Agreement and Exit Plan. (Doc. No. 598 (the “Unopposed Notice of Compliance”).) As the Parties have agreed in the Unopposed Notice of Compliance, this Court FINDS that the following has occurred:
(1) Defendants developed an external accountability reporting center (the “Accountability Center”), with direct and regular input from the TAC and Plaintiffs;
(2) Defendants funded the Accountability Center in a manner that allowed the Accountability Center to report publicly on DCS’s efforts to maintain the program, policy and practice improvements achieved under the supervision of this Court and under the 2017 Exit Plan, and maintained that funding for at least eighteen (18) months;
(3) The Accountability Center began its public reporting after the entry of the Order of Partial Dismissal;
(4) The Accountability Center has produced, to date, three semi-annual reports on DCS’s performance under the terms of the 2017 Exit Plan, and those reports were based largely on data the Accountability Center requested and received from DCS. (Doc. No. 598 at p 3.)
Moreover, this Court has reviewed the record in this cause and FINDS that the Accountability Center has issued three (3) semi-annual reports. In particular, the Accountability Center’s first report was jointly filed by the parties on December 14, 2017. (Doc. No. 593; and, Accountability Center Report No. 1 (“Report No. 1”) at Doc No. 593-1.) Report No. 1 makes it clear that the Accountability Center is independent of Defendants, and that it is designed to “provide the information needed by the public and other stakeholders” and to assist DCS
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“strengthen the systems [it] uses to monitor its performance going forward”. (Doc. No. 593-1, p 1.) Likewise, on June 7, 2018, the parties jointly filed the Accountability Center’s second report. (Doc. No. 594 and 594-1.) Finally, the parties jointly filed the Accountability Center’s third report and the companion race disparity report on December 19, 2018. (Doc. Nos. 595 and 5951.) The Court FINDS that the three reports issued by the Accountability Center’s clearly evidence that Defendants have fulfilled their obligations under Section XIX of the 2017 Exit Plan.
On January 16, 2019, Plaintiffs’ filed an Unopposed and Final Motion for Approval of Attorneys’ Fees and Expenses (Doc. No. 596). The Court subsequently entered an order awarding Plaintiffs fees and the Court has been notified that the full amount of awarded fees and expenses have been paid.
Based on these findings and the entire record in this case, IT IS ORDERED, ADJUDGED AND DECREED that this Court’s jurisdiction over this case is hereby TERMINATED and this case is DISMISSED WITH PREJUDICE in all respects. The Court further finds that, as dismissal is based on the merits, this is not a settlement, voluntary dismissal or compromise, and, therefore, separate notice to the class is not required.
IT IS SO ORDERED.
_____________________________ WAVERLY D. CRENSHAW, JR. Chief United States District Judge
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 MONITORING REPORT OF
THE TECHNICAL ASSISTANCE COMMITTEE
IN THE CASE OF BRIAN A. V. BREDESEN
January 19, 2007

TECHNICAL ASSISTANCE COMMITTEE MEMBERS:
Steven D. Cohen Senior Associate Annie E. Casey Foundation Baltimore, MD
Judy Meltzer Deputy Director Center for the Study of Social Policy Washington, D.C. Andy Shookhoff Associate Director Vanderbilt Child and Family Policy Center Nashville, TN
Paul Vincent Director
Child Welfare Policy and Practice Group Montgomery, AL
ii

Table of Contents Preface........................................................................................................................1 Section One: Identifying and Responding to Racial Disparity.................................3
I. Using Data to Understand and Respond to Racial Disparity............................6 II. Additional Activities Related to the Recommendations of the Racial Disparity Study ....................................................................................................13 Section Two: Results of the 2006 Case File Review................................................26 I. Placement..........................................................................................................32 II. Visits and Family Contact ...............................................................................47 III. Child and Family Team Meetings..................................................................69 IV. Services and Well-Being ...............................................................................77 V. Case Transfer ..................................................................................................94 VI. Maltreatment While in DCS Custody............................................................97 VII. Case File Contents........................................................................................102 VIII. Legal Advocacy ..........................................................................................107
iii

Figures Figure 1: Child’s Initial Placement ...........................................................................34 Figure 2: Child’s Initial Placement by Family or Congregate Care Setting Type ...........................................................................................................................34 Figure 3: Child’s Placement at End of Review Period .............................................35 Figure 4: Child’s Placement at End of Review Period by Family or Congregate Care Setting Type ...................................................................................36 Figure 5: Child Placed in Kinship Home at Time of Entry ......................................37 Figure 6: Child Living with Kin at Some Point during the Review Period..............37 Figure 7: Type of Kin Placement..............................................................................38 Figure 8: Placement in Emergency or Temporary Facility during the Review Period ......................................................................................................39 Figure 9: Child Experienced at Least One Placement Change during the Review Period...........................................................................................41 Figure 10: Number of Placements during the Review Period ..................................41 Figure 11: Case File Clearly Documents Reason for Placement Change.................42 Figure 12: Reason for Most Recent Placement Change during the Review Period............................................................................................................43 Figure 13: Case File Documents Provision of Services to Stabilize Placement....................................................................................................44 Figure 14: Child Placed with Siblings in Custody as of the End of the Review Period ......................................................................................................45 Figure 15: Child Was Separated from Siblings in Custody at Some Point during the Review Period...........................................................................................45 Figure 16: Frequency of Child’s Visits with Primary Caregiver..............................48 Figure 17: Frequency of Child’s Visits with Primary Caregiver (Adjusted)............50 Figure 18: Frequency of Child’s Visits with Siblings ..............................................51
iv

Figure 19: Case Manager Face-to-Face Contacts during First Eight Weeks in New Placement between October 1, 2005 and March 31, 2006............................54
Figure 20: Location of Visits: Number of Documented Case Manager Visits Occurring at Placement Location during First Eight Weeks in New Placement ......................................................................................................55
Figure 21: Case Manager Face-to-Face Contacts during Second Eight Weeks in Placement between October 1, 2005 and March 31, 2006...............56
Figure 22: Case Manager Face-to-Face Contacts with More than Thirty Days Lapsing Between Visits .........................................................................57
Figure 23: Case Manager Face-to Face Contacts Included Time with Child Outside the Presence of Caregiver.............................................................................58
Figure 24: DCS Case Manager had Face-to-Face Contact with Child in Private Provider Placement at Least One Time per Month ...................................59
Figure 25: Location of Visits: DCS Case Manager’s Face-to-Face Visits with Child in Private Provider Placement Occurring at Placement Location............60
Figure 26: DCS and Private Provider Case Managers Visited Jointly with Child at Least Once Every Three Months .........................................................61
Figure 27: Location of Visits: DCS and Private Provider Case Manager Joint Visits Occurring at Placement Location ...........................................................62
Figure 28: Frequency of DCS Case Manager Visits with Family of Origin ............63
Figure 29: Frequency of DCS Case Manager Visits with Family of Origin (Adjusted) ..................................................................................................................65
Figure 30: Frequency of Private Provider Case Manager Visits with Family of Origin ........................................................................................................66
Figure 31: Frequency of DCS Case Manager Visits with Foster Parents or Facility Staff ..........................................................................................................67
Figure 32: Frequency of Private Provider Case Manager Visits with Foster Parents or Facility Staff ..................................................................................68
Figure 33: Occurrence of Initial Child and Family Team Meeting ..........................71
Figure 34: Occurrence of Permanency Planning Child and Family Team Meeting ......................................................................................................................72
v

Figure 35: Presence of Child (Age 12 or Older) at Initial Child and Family Team Meeting ............................................................................................................73
Figure 36: Presence of Child (Age 12 or Older) at Permanency Planning Child and Family Team Meeting ...............................................................................73
Figure 37: Permanency Plan Signed by Parent(s) within 30 Days of Custody Date .........................................................................................................75
Figure 38: Permanency Plan Signed by Child (Age 12 or Older) within 30 Days of Custody Date .........................................................................................................76
Figure 39: Medical Assessment Completed upon Entry into Custody .....................77
Figure 40: Case File Documents that Child Received Needed Medical Evaluation and/or Treatment for Identified Problems ...............................................78
Figure 41: Child Received Needed Medical Evaluation and/or Treatment for Identified Problems (Adjusted)...........................................................79
Figure 42: Case File Documents that Child Received Needed Mental Health Care for Identified Problems..............................................................81
Figure 43: Child Received Needed Mental Health Care for Identified Problems (Adjusted)..................................................................................83
Figure 44: Child was Administered Psychotropic Medication between October 1, 2005 and March 31, 2006 ........................................................................84
Figure 45: Percent of Children in Each Age Range Administered Psychotropic Medication ...........................................................................................85
Figure 46: Children Age 7 to 18 by Administration of Psychotropic Medication .................................................................................................................85
Figure 47: Case File Documents Consent for Administration of Psychotropic Medications..........................................................................................86
Figure 48: Consent for Administration of Psychotropic Medications (Adjusted)....87
Figure 49: Current Copy of Child’s Report Card in Case File .................................90
Figure 50: Child Changed Schools when Entering Care ..........................................91
Figure 51: Child’s Placement Change Required School Change .............................91
vi

Figure 52: Child Initially Placed Outside School Zone to Facilitate Kinship Placement .....................................................................................................92 Figure 53: Case Transferred to a New Worker during the Review Period...............95 Figure 54: Case Transfer Included a Face-to-Face Meeting between Case Managers ...........................................................................................................96 Figure 55: Case File Documents Efforts to Introduce New Case Manager to Child and Child’s Parents ......................................................................................96 Figure 56: Child Was Subject of CPS Investigation during Custody Episode .........98 Figure 57: Case File Documentation ........................................................................102 Figure 58: Timely Entry of Case Recordings ...........................................................103 Figure 59: Documentation that Child Has a Guardian ad litem................................107
Appendices Appendix A: Entry and Exit Disparities in the Tennessee Foster Care System Appendix B: Diversity Gap Analysis Appendix C: Case File Review Methodology Appendix D: Comparison of Data between the 2005 and 2006 Case File Reviews
vii

PREFACE
This report was prepared by the Technical Assistance Committee pursuant to the orders entered in Brian A. v. Bredesen, Civ. Act. No. 3:00-0445 (Fed. Dist. Ct., M.D. Tenn), a civil rights class action brought on behalf of children in the custody of the Tennessee Department of Children’s Services. The “Brian A. class” includes all children placed in state custody either:
(a) because they were abused or neglected; or
(b) because they engaged in non-criminal misbehavior (truancy, running away from home, parental disobedience, violation of a “valid court order,” or other “unruly child” offenses).
The Brian A. Settlement Agreement (Settlement Agreement) entered on July 27, 2001, requires improvements in the operations of the Tennessee Department of Children’s Services (DCS) and establishes the outcomes to be achieved by the State of Tennessee on behalf of children in custody and their families.
The Role of the Technical Assistance Committee
The Settlement Agreement established the Technical Assistance Committee (TAC), originally consisting of five experts in the child welfare field selected by agreement of the parties, to serve as a resource to the Department in the development and implementation of its reform effort.
The TAC was envisioned as a way of making available to DCS the range of expertise and assistance that was perceived by the parties as necessary to ensure that the reform would be successful. The primary function of the TAC was and continues to be to advise and assist DCS in its efforts to design, implement and evaluate improvements required by the Settlement Agreement. In addition, there are certain areas in which the Settlement Agreement gives the TAC responsibility for making recommendations, which the Department is then required to implement.
Under the terms of the Stipulation of Settlement of Contempt Motion (Stipulation) entered by the Federal District Court on December 30, 2003, the TAC also assumed responsibility for assisting the State in developing an implementation plan and monitoring and reporting on the State’s performance both under that plan and under the original agreement for a twenty-six month period beginning January 1, 2004.1 A
1 The Path to Excellence, the implementation plan developed by DCS in accordance with the Stipulation, was approved by the Court on August 19, 2004.
1

Stipulation to Extend Monitoring was entered on February 16, 2006, extending the TAC’s monitoring role and responsibilities through August 31, 2007.2 This is the fourth monitoring report issued by the TAC. The previous monitoring reports are available on-line at http://www.state.tn.us/youth/news_room/spotlight/spotlight.htm. The Focus and Structure of this Monitoring Report This Monitoring Report is presented in two sections. The first section reports on the Department’s efforts to identify and address any disparate impact of Tennessee’s child welfare system policies and practices on minority children and families. The second section presents the results of the 2006 Case File Review conducted by TAC monitoring staff focused on the experience of children recently entering state custody. Each section includes an introduction and a summary of key findings. Additional materials referred to in the text of the sections are included in the appendices to this report.
2 In addition, pursuant to that stipulation, the TAC became a four person committee with its current membership.
2

SECTION ONE: IDENTIFYING AND RESPONDING TO RACIAL DISPARITY
This section of the Monitoring Report focuses on the progress that the Department has made in implementing those provisions of the Settlement Agreement and the Path to Excellence that were intended to address the parties’ concern with the “national problem of the overrepresentation of African-American children in child welfare systems” and the parties’ shared commitment to “ensuring that there is no disparate treatment of, or disparate impact on, African-American children in the plaintiff class.”3
The Settlement Agreement provided for an evaluation of the Tennessee child welfare system to determine the extent of any disparate treatment or impact of child welfare policies and practices in Tennessee and to make recommendations for the Department to implement in order to address any such disparate treatment or impact.4
The Department contracted with Dr. Ruth McRoy, a professor and researcher at the University of Texas School of Social Work, to conduct the Racial Disparity Study. The results of the study were published in the fall of 2003.5
One of the significant challenges faced by Dr. McRoy and her team in conducting the Racial Disparity Study was the limited capacity of the Department to produce reliable aggregate data in a range of areas critical to identifying, understanding, and responding to minority overrepresentation in Tennessee’s child welfare system and any disparities in treatment of minority children and their families.
Dr. McRoy emphasized that without a significant improvement in its data capacity the Department would continue to be severely limited in its ability to develop and implement strategies to address overrepresentation and disparate treatment. For this reason, a central recommendation of the Study was the improvement of data reporting and analysis.
Notwithstanding the limits of Tennessee’s data capacity, by analyzing the data available, developing additional information through a variety of research techniques, and drawing on the experience in other jurisdictions, Dr. McRoy was able to identify and recommend a set of activities for the Department to engage in, pending the development of increased data capacity, focused on policies, practices, services and supports that were particularly relevant to the experiences of minority children and their families in Tennessee. These recommendations focused on five areas: resource family recruitment; relative and
3 Settlement Agreement XI.E.6 4 Settlement Agreement XI.E.6 5 McRoy, R..G. et al, Tennessee Department of Children’s Services Racial Disparity Study (November, 26, 2003). As part of the Stipulation entered on December 30, 2003, the parties agreed to incorporate the results and recommendations of the Racial Disparity Study into the implementation plan required by the Stipulation. The Path to Excellence includes a section entitled “Implementation of the Recommendations of the Racial Disparity Study,” setting forth those recommendations that the Department is to implement. Path to Excellence, pp 16-17. See also: Domain I, Goal 4, Cultural Competency Plan; Domain VI, Goal 3, Strategy 1, relative caregiver expansion; Domain V, Goal 3, Strategies 1-2, visiting of kinship homes; and Domain II, Goal 1, Strategies 1-5, staff recruitment, hiring and retention.
3

kinship caregiver supports; potential diversion of class members to the juvenile justice system; staff recruitment and retention; and cultural competency training and development.
This section of the Monitoring Report consists of two parts.
Part One addresses the progress made by the Department in developing the data capacity called for by the recommendations of the Racial Disparity Study. Through its collaboration with the University of Chicago Chapin Hall Center for Children, the Department has recently released a report that exemplifies the kind of data analysis envisioned by the recommendations of the Racial Disparity. The Chapin Hall Report, Entry and Exit Disparities in the Tennessee Foster Care System,6 which is included as an Appendix to this Monitoring Report, provides a level of analysis that allows the Department to develop more fine-tuned strategies and to supplement and refine the efforts initiated in response to the recommendations of the Racial Disparity Study.
Part Two of this section provides an update on the variety of other activities that the Department has undertaken in response to the recommendations of the Racial Disparity Study focusing on: resource family recruitment; relative and kinship caregiver supports; potential diversion of class members to the juvenile justice system; staff recruitment and retention; and cultural competency training and development.
KEY FINDINGS:
• The Department has made significant progress in developing its capacity to produce reliable aggregate data in a range of areas critical to identifying, understanding and responding to issues of overrepresentation of minority children in the child welfare system and disparate treatment/impact of child welfare policies and practices on minority children and their families.
• The Department’s data analysis supports the Department’s decision to develop and implement specific disparity reduction strategies in four counties: Shelby, Davidson, Knox and Madison.
• The Department has made significant progress in the development of the data reporting and analysis necessary for planning and tracking recruitment, certification and retention efforts and for more effectively utilizing relatives, fictive kin, and existing non-relative resource homes.
• The Department remains challenged in its effort to develop and implement more effective resource family recruitment and retention strategies to ensure that children, including minority children, can be served in family settings in or near their home
6 Wulczyn, F., B. Lery and J. Haight, Chapin Hall Center for Children, University of Chicago (December 2006).
4

communities. The Department does not appear to have been successful in increasing the numbers of resource families to meet their most pressing needs. • The Department has substantially implemented many of the specific recommendations of the Racial Disparity Study, including expanding the range of supports and options available to relative caregivers. • There continue to be concerns about the extent to which relatives and fictive kin are being effectively engaged and provided the information they need to understand and take advantage of the supports and options available to relative caregivers interested in serving as a placement resource for children. • The Department generally has a diverse work force across regions and across positions, from line staff to senior leadership.
5

I. USING DATA TO UNDERSTAND AND RESPOND TO RACIAL DISPARITY
A. Introduction
As has been noted in previous monitoring reports, one of the Department’s most significant achievements has been the building of its capacity to generate and use data.
The Racial Disparity Study recommended that the Department develop the capacity to collect and analyze data to identify areas in which it appears that policy or practice is having a disparate impact on minority families and to use that data and analysis to fashion strategies to reduce those areas of disparity. The Study identified the need for:
• Reporting Brian A. outcomes by race; • Identifying and reporting on relevant performance measures by race; • Where appropriate, monitoring and reporting private provider outcome and
performance data by race.
The Department is now routinely reporting aggregate data on key performance indicators and outcomes, and has the capacity to sort and report all of its aggregate data by a variety of categories, including race and ethnicity.
Most significantly, through its collaboration with the University of Chicago Chapin Hall Center for Children, the Department has recently released a report that exemplifies the kind of data analysis envisioned by the recommendations of the Racial Disparity Study.7
The Chapin Hall Report, Entry and Exit Disparities in the Tennessee Foster Care System (included as Appendix A of this Monitoring Report), provides an analysis of Tennessee’s aggregate entry and exit data with a focus on race and ethnicity in order to provide some understanding of specific areas in which the experience of African-American class members in Tennessee differs from the experience of white class members.
The Report identifies levels of racial disparity that are particularly noteworthy across a variety of dimensions:
• By geography: in which regions of the state is racial disparity greater than other regions?
• By age: among which age groups do we find the greatest racial disparity?
7 Beginning in January 2007, as part of the Department’s reorganization and consolidation of data reporting and analysis responsibilities, Chapin Hall will be producing a broader range of statewide and regional reports, and will be including in that expanded reporting, additional data and analysis related to race and ethnicity.
6

• By stage of the process: what disparities do we see in the numbers of minority children entering foster care, in the length of stay for minority children who come into foster care, and in their destinations when they exit foster care?
This section summarizes the analysis presented in the Chapin Hall Report, discusses its implications, and describes steps the Department is taking in response to the Report to develop and implement strategies to improve practice and reduce racial disparity.8
B. Major Findings of the Chapin Hall Study9
Minority children are overrepresented in the Tennessee Child Welfare System:
• African-American children make up 21% of the total number of children under age 18 in Tennessee, but make up 31% of the children in foster care.
• Hispanic children make up 4% of the overall child population in Tennessee, but account for 8% of the foster care population.10
To help us understand the dynamics of overrepresentation of minority children, the Report provides data that addresses a core set of questions focused on the differences in entry rates, lengths of stay and destinations upon exit from state custody:
• What disparities do we see in the number of minority children entering foster care? To what extent do higher entry rates contribute to the overrepresentation of children in DCS custody?
• What disparities do we see in the length of stay of minority children once they are in foster care? To what extent do longer lengths of stay contribute to the overrepresentation of children in DCS custody?
• Are there differences in the mix of permanency exit types for minority children or in the length of time to achieve permanency that contribute to longer stays in custody?
8 Child abuse reporting data is presently being gathered and analyzed by race and ethnicity to help the Department understand the extent to which entry disparity is related to decisions made in connection with the reporting and investigation of allegations of abuse and neglect. In addition, the Department is in the process of gathering and analyzing data on case practice and service provision for children in care with a focus on race and ethnicity. The Department anticipates completing both these pieces of work by February and the TAC will report on the results in its next monitoring report. 9 The underlying data sources for all of the information provided in this section can be found in the Chapin Hall Report attached as Appendix A of this Monitoring Report. While all figures cited are from the Chapin Hall Report, any interpretations of that data set forth in this Monitoring Report, other than those explicitly articulated in the Chapin Hall Report, are the responsibility of the TAC. 10 Because the number of Hispanic children in care is relatively small in Tennessee, in most instances the Report provides limited information for Hispanic children.
7

To further our understanding, the Report adds two additional dimensions, geography and age, to the analysis of entry, exit and destination data:
• To what extent is geography a factor in determining the extent of racial disparity? In which regions of the state is racial disparity greater than other regions?
• To what extent is age a factor in determining the extent of racial disparity? Among which age groups do we find the greatest disparity?
Finally, the Report examines a variety of socio-economic factors—poverty, family structure, adult population education level, population concentration (urban v. rural)—to determine the extent to which such factors might help explain some of the disparity.
The following are the key findings with respect to these questions:
Children Entering Foster Care for the First Time
• In 2005, the rate of initial entry into foster care for Tennessee as a whole was 3.4 per 1,000 children. The rate was highest among Hispanic children (4.4/1000), followed by African-American children (3.8/1000). The rate for white children was 3.1/1000.
• In relative terms, therefore, an African-American child was 1.2 times as likely as a white child to enter foster care in 2005. An Hispanic child was 1.4 times as likely as a white child to enter care. As further discussed below, however, these figures alone do not convey the extent of disparity in many parts of the State. In seven of Tennessee’s twelve regions, African-American children were at least twice as likely as white children to enter foster care.
• The extent of disparity as measured by these “relative rates” has declined over the past five years. In 2000, both African-American and Hispanic children were 1.5 times as likely as white children to enter care. The reason for the decline is that, while placement rates for all groups increased from 2000 to 2005, the increase was larger for white children than for those in other groups.
• As is true in most other jurisdictions, infants (children under age 1) were far more likely than children of other ages to be placed in foster care. Placement rates for these young children ranged from 11.6/1000 for African-American infants to 8.5 for white infants. Teens (age 13-17) had the next highest placement rates, ranging from 6.7 for Hispanic teens to 3.9 for white teens.
• Placement rates varied widely across the twelve regions, from a high of 5.5/1000 in East Tennessee and Upper Cumberland to a low of 1.8 in Shelby. While regional variation is not unusual, the form it takes in Tennessee is notable. In most other States, counties that include the largest cities have placement rates that are higher
8

than those for the State as a whole. In Tennessee, however, Shelby (Memphis) has a remarkably low placement rate, just over half of that for the State.11
• Nearly half of the African-American children in Tennessee live in Shelby County. As a result, Shelby’s low placement rate has a very powerful effect on the State-wide statistics. Across all regions in the State, as noted above, African-American children are 1.2 times as likely to enter care as white children. This is largely because a randomly selected African-American child in Tennessee is very likely to live in Shelby, where relatively few children are placed, and very unlikely to live in the regions with the highest overall placement rates (East, Upper Cumberland, and Northeast).
• Within regions, however, the picture looks very different. Eleven of the twelve regions have disparity rates greater than that of the State as a whole. In Knox, African-American children are nearly four times as likely as white children to be placed in care (entry rates of 9.0/1000 for African-American children, 2.3 for white children, yielding a relative rate of 3.9). In Shelby and Upper Cumberland, AfricanAmerican children are at least three times as likely as white children to enter care. In South Central, Davidson, Northeast, and Hamilton, African-American children are at least twice as likely as white children to enter care.
• The researchers also analyzed underlying characteristics of the county populations to see if disparity rates are linked to those population characteristics. They found that the percentage of adults age twenty-five or older without a high school education and the percentage of families headed by single parents were both related to lower placement rate disparity. (A more detailed discussion of the analysis of underlying population characteristics is contained in the Report).
Children Leaving the Foster Care System
• In 2004, the median length of stay for all children entering foster care was 6.4 months. Placement duration was higher for African-American children (median of 7.5 months) than for white children (6.1 months). Differences in placement experience grew more pronounced for those children who remained in care for longer periods of time. It took 20.9 months for 75% of African-American entrants to exit from care, compared to 15.3 months for 75% of white entrants to exit care.
• Lengths of stay also varied substantially by region. In 2004, the highest median lengths of stay were for African-American children entering care in Knox (13.0 months) and South Central (11.8 months).
11 The Department has made some efforts to understand the factors contributing to the low placement rate in Shelby County. The TAC would expect that once the Department has completed its analysis of the child abuse reporting and investigations data for Shelby County, it will be in a position to more fully account for the placement rate, provide a better understanding of the strengths and weaknesses of process and practice in Shelby County, and identify areas for improvement, including improvement that would reduce racial disparity.
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• Two factors seem particularly important in explaining longer lengths of stay among African-American children. First, white children were significantly more likely to be reunified with their parents within the first year of entering care (51%, compared to 37% of African-American children). Second, while African-American children are as likely as white children to be adopted, adoption took significantly longer for AfricanAmerican children than for white children.
• The researchers analyzed a combination of factors, including age, region, and type of placement, to try to understand more about why different children had different lengths of stay. (A more detailed discussion of this analysis is contained in the Report.)
C. Recommendations of the Chapin Hall Study for Strategic Planning and Departmental Action
The Chapin Hall Report identifies a number of areas for targeted investments that might reasonably be expected to improve outcomes for children and help reduce racial disparity, and also identifies some further analysis that might help the Department develop additional strategies. The Report recommends that the Department:
1. Implement Strategies that Improve Supports for Single Parents with Infants
African-American infants are the children with the highest placement risk. In addition, children from households headed by single parents may be at greater placement risk. Improvements in serving families with infants, especially single parents with infants, may prove to be effective in reducing placement rates generally and would benefit AfricanAmerican families with infants in particular.
2. Prioritize the Counties Where the Potential Impact is the Greatest
Shelby and Davidson County account for the highest number of placements of AfricanAmerican infants and have relatively high disparity rates. Knox County has both a high placement rate of African-American infants and a high disparity rate. Madison County has a high rate of single parent headed households, has the third highest placement rate, and has a much higher disparity rate than the state as a whole. If the preferred approach is to target resources to have the maximum impact, it is reasonable for the Department to focus on improving supports for families with infants in these counties. As part of this effort, single parent families may warrant additional attention.
3. Focus on Services for Single Parents and Training for Workers
Quality child care, home visiting programs, and parenting skill training focused on effective parenting of infants are among the evidence-based approaches to supporting
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single parents with young children that are identified in the Chapin Hall Report as worth exploring.12
Training of workers who assess families is also recommended as an area of focus. “If workers tend to treat parents with less education or single parent families differently for reasons that are unrelated to direct evidence of maltreatment, social workers may need to learn how to activate the social networks within communities to better serve single parents.”13
4. Examine the Extent to which Disparities are Attributable to the Maltreatment Reporting and Investigation Process
The Department’s analysis of the factors that contribute to higher rates of entry into custody by minority children will not be complete until they understand the extent to which there is disparity in the reporting and investigation process. Is there disparity in the rates of reporting? Are there differences in the sources of the reporting? Are there higher rates of substantiated findings in the cases of minority children and families? Are CPS workers and/or judicial officials recommending/seeking/ordering removal in substantiated cases involving minority children and families more frequently than they do cases involving white children and families? Additional data collection and analysis are necessary to be able to answer these questions.
D. DCS Response to the Findings and Recommendations of Chapin Hall Study
Consistent with the recommendations of the Chapin Hall Study, the Department is taking steps to partner with both the Department of Health (DOH) and the Governor's Office of Child Care Coordination (GOCCC) to support access to services for single parents with infants in Davidson, Shelby, Knox, and Madison counties.
The Department of Health operates and oversees home visitation programs for at risk families, substance abuse programs, and WIC. The Governor's Office of Child Care Coordination is engaged in a major initiative to address the extremely high infant mortality rate in Tennessee. The Department believes that it is likely that the factors driving the high infant mortality rate also contribute to the number of infants entering state custody.
The Department is proposing to work with these two agencies as well as communitybased service programs for young, low income single parents to support their efforts and initiatives. A meeting is scheduled with DOH and GOCCC, representatives of direct service agencies in Shelby and Davidson counties, and DCS personnel in January to
12 Chapin Hall uses the term “parenting skill training” to refer not to the entire range of curricular offerings that are frequently referred to in child welfare systems as “parenting classes”, but rather to skills-focused training (whether delivered in a group, individually or in combination) that has been demonstrated to be successful in improving parenting abilities of parents of young children in challenging situations. 13 Chapin Hall Report, pp. 35.
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identify additional assistance and coordination that could be helpful to these efforts. A similar initiative will take place in Knox County in late February or March and in Madison County later in the spring. In addition, Chapin Hall and the Department are presently gathering and analyzing child protective services data by race and ethnicity to help understand the extent to which entry disparity is related to decisions made in connection with the reporting and investigation of allegations of abuse and neglect. The Department expects to receive this additional data and analysis from Chapin Hall in February 2007. The Department anticipates developing and implementing additional strategies based on this additional data and analysis.
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II. ADDITIONAL ACTIVITIES RELATED TO THE RECOMMENDATIONS OF THE RACIAL DISPARITY STUDY
Part One of this section of the Monitoring Report focused on the progress made by the Department in building the data capacity called for by the recommendations of the Racial Disparity Study. Part Two of this section of the Monitoring Report presents and discusses the progress that the Department has made in response to other recommendations of the Racial Disparity Study. These recommendations are organized and discussed under five broad headings: Resource Family Recruitment, Relative and Kinship Caregiver Supports, Potential Diversion of Class Members to the Juvenile Justice System, Staff Recruitment and Retention, and Cultural Competency Training and Development.
A. Resource Family Recruitment
To ensure that there are a sufficient number of families to provide neighborhood family placements for all African-American children who need them, the Racial Disparity Study recommended that the Department increase the number of non-relative African-American foster and adoptive families, kinship foster homes and relative caregivers through:
• Targeted recruitment efforts; and
• Regional recruitment plans that identify outreach and recruitment strategies and set recruitment targets.
The Department policy is to place children in family settings whenever possible, to make sure that children are comfortable in those family settings, and to maintain as much as possible those family and community connections that are important to the child’s stability and well-being. In order to accomplish this, the Department is committed in both the Path to Excellence and the regional implementation plans to recruiting resource families from the neighborhoods that children come from and from the kinship networks of which they are a part. The emphasis is on placing children with relatives or others with whom they have a pre-existing relationship. For children who must be placed with strangers, the Department is committed to creating a pool of local resource families in every county/region so that children are able to maintain their community contacts and be with families with whom they feel comfortable.
Notwithstanding the clear commitment of the Department in this area, the Department continues to struggle to increase the number of resource families available in each county/region to serve the types of children that are coming into care in those counties/regions. There are some examples of outreach efforts in some regions targeting the faith community, and anecdotal reports of some significant successes with particular churches. While these examples may hold some promise for increased success in recruitment of “neighborhood homes for neighborhood children,” at this point those
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efforts have not produced substantial progress toward achieving that regional goal in any region.
The Department has recognized this and the Department’s revised implementation plan, the Road to Reform, outlines the approach that the Department will be taking over the coming year to improve in this area. As part of the work that each region has to do to support the implementation of the Unified Placement Process, the regions must identify and develop an increasing pool of diverse, community-based resources that match the population of local children entering care. These resources—in-home, foster care, transitional and post-permanency—must be able to address the needs and complement the strengths of children and their families.
It appears that the June 2006 TNKids build (a major focus of which was addressing the critical data needs related to resource home recruitment, retention, and utilization) has provided both the regions and the central office the data capacity that they need on available resource homes so that homes can be more effectively utilized, information on gaps in resource homes for particular populations can be identified, recruitment goals can be targeted, and progress toward those goals can be tracked. The build is complete and the Department is in the process of reviewing the reports that the new system can generate and ensuring that all of the data on existing resource families is entered into TNKids. The Department is also in the process of exploring the extent to which this information can be used to draw conclusions about the characteristics of available resource homes, the success in recruitment of new homes, or the extent to which the homes match the needs of the foster care population.
The Department has developed a training rollout plan that began on December 5, 2006 and is scheduled to be completed on March 15, 2007. This training is intended to inform all DCS regional and central office staff persons with responsibilities for the recruitment and/or support of resource parents, placement of children and youth, or assuring quality practice through data collection and analysis to use TNKids to do the following:
• Understand the characteristics of resource homes throughout Tennessee; • Identify the quantity and types of persons who need to be targeted for becoming
resource homes in Tennessee; • Identify the communities throughout Tennessee where the Department needs to focus
its recruitment efforts because of the large numbers of children and youth who are entering state custody from these same communities; • Inform case managers and Child and Family Teams about the available placements for children and youth as well as the placements that may best meet the needs of particular children and youth; • Highlight strengths as well as gaps within a particular region’s resource home approval process; • Ensure that relatives and fictive kin are being approved in a timely manner both for the placement of children and for the receipt of the resource home board payment; and • Track the reasons that resource homes are being closed.
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The Department has scheduled a Recruitment Summit for January 2007. Each region will be attending the Summit and developing resource parent recruitment plans, utilizing the data that will be made available to them as a baseline, and will be expected to identify outreach efforts and recruitment strategies, as well as recruitment targets.
The Department is developing a template that will help the regions structure their recruitment and retention plans and help ensure that the regions develop and articulate strategies, concrete action steps, timelines, and responsible persons associated with those action steps, as well as provisions for tracking and reporting on implementation.
The Department has identified a set of technical assistance needs related to resource parent recruitment and retention and technical assistance providers to help meet these needs. They are developing plans for allocating technical assistance to the regions to support the regional recruitment efforts.
The TAC will be reporting on these efforts in the next monitoring report.
B. Relative and Kinship Caregiver Supports
As the Racial Disparity Study emphasized, relatives and kinship networks are especially important resources (both actual and potential) for many minority families. For this reason, when child welfare systems are able to improve outreach to and support of relative caregivers and to expand permanency options to include subsidized guardianship, outcomes for minority children should improve.
The Racial Disparity Study recommended that the Department improve the supports and expand the options available to relative caregivers and kinship foster families by:
• Expanding the Relative Caregiver Program (including necessary funding) to all twelve regions;
• Exploring options, including applying for a IV-E waiver and drafting legislation for the Governor’s consideration to create an additional permanency option of subsidized guardianship;
• Exploring whether there is an inappropriate use of unfunded/under-funded relative placements for African-American children and, if there is, addressing any disparities in support for African-American relative caregivers by making appropriate revisions in policies or procedures;
• Ensuring that DCS staff is trained and knowledgeable about all financial options for potential African-American relative and kinship caregivers, including kinship foster care and Relative Caregiver Program options;
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• Giving special attention to the manner and extent to which these options are communicated to African-American kinship and relative caregivers;
• Ensuring that children in kinship foster homes are visited with the same frequency as children in non-kinship foster homes.
1. Expansion of the Relative Caregiver Program
The Relative Caregiver Program was initiated by the Department of Children’s Services to provide support for relatives caring for children who are not in DCS custody. The program goal is to help those relatives provide a safe and stable home for those children and to support relative caregiving as a viable alternative to state custody in appropriate cases, either eliminating the need for placement in state custody in the first place or supporting successful discharge to a relative from state custody.
Through the Relative Caregiver Program, DCS contracts with an appropriate private agency to provide a variety of supportive services to relative caregivers, including: shortterm case management; information and referral services; educational workshops for caregivers and those working with them; emergency financial assistance; recreation and respite opportunities; groups for children and teens in relative placements; and support groups for relative caregivers.
The TAC reported in its January 19, 2006 report that the Department was in the process of expanding the Relative Caregiver Program to all twelve regions. The Relative Caregiver Program is currently operating in nine regions. Contracts for the remaining three regions, Mid-Cumberland, South Central and Southeast, were awarded in September and the contracting agencies are expected to hire staff and get the program up and running by December 2006.
The following are the regional Relative Caregiver Programs, listed in order of inception date, and including the inception date and the agency presently administering the program:
Beginning April 2001: • Davidson, Family & Children’s Service • Shelby, University of Tennessee Boling Center for Developmental Disabilities • Upper-Cumberland, Upper Cumberland Developmental District
Beginning July 2005: • Hamilton, Southeast Tennessee Area Agency on Aging and Disability • East, Foothills Care Inc. • Knox, Foothills Care Inc.
Beginning October 2005: • Northwest, Carl Perkins Center
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Beginning April 2006: • Northeast, Foothills Care Inc. • Southwest, Carl Perkins Center
Beginning October 2006 (Contracts Pending): • Mid-Cumberland, New Visions Inc. • Southeast, Southeast Tennessee Area Agency on Aging and Disability • South Central, Center for Family Development
The emphasis over the past year has been on getting programs up and running in every region and developing a structure for gathering information from the programs on the activities they engage in and the clients they are serving. The Department requires some basic monthly and quarterly reporting from the Relative Caregiver Programs and has developed a client satisfaction survey that is to be used to get feedback from the relative caregivers regarding their experience with the Relative Caregiver Program. While the Department has done some preliminary work on identifying outcome measures for evaluating the impact of the Relative Caregiver Programs, the programs overall are relatively new and much focus has been on working with relative caregivers to shape the programs in ways that respond to the needs they have identified as priorities.
Through the expansion of Relative Caregiver Programs to each of the regions the Department has created a structure for partnerships with client communities. Each of the Relative Caregiver Programs is required to have an advisory board that includes relative caregivers and representatives of community agencies that work with relative caregivers.
In addition, there is a statewide Kinship Care Advisory Board that includes relative caregivers from around the state. The Department supports quarterly meetings of the Advisory Board. This year the Department also provided support for a Kinship Summit, a forum for policy-focused input from relative caregivers across the state and those who work with them.14
The regional and statewide advisory groups were originally conceived as a way of ensuring that the Relative Caregiver Programs are responding to the needs of the families they serve and are learning from the experiences of those families. However, the advisory groups also provide an opportunity for identifying and involving family members in the formal regional and statewide planning and CQI processes.
14 The Summit, held in April 2006, was organized around four areas: financial resources, information and supportive services, placement practices, and court proceedings and permanency. Work groups that included caregivers, Relative Caregiver Program staff, and DCS representatives, developed a set of prioritized action steps in each of these areas for addressing certain challenges that relative caregivers are experiencing and enhancing the capacity of relatives to effectively serve as placement resources for children at risk of coming into DCS custody or in DCS custody. The Kinship Advisory Board reconvened in July to follow up on the action agenda coming out of the April gathering and another statewide meeting is scheduled for January 2007 to review the extent to which the action steps have been/are being implemented.
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Because the building of community partnerships is one of the core strategies in the Road to Reform, one would expect to see over the coming year increased interaction between the Relative Caregiver Programs and the regional leadership and more formal structures for engaging and supporting relative caregivers, not simply as resources in individual cases or as advisors to the Relative Caregiver Programs, but as partners with DCS in broader system improvement.
2. Exploration of Subsidized Guardianship
One of the promising developments in child welfare nationally has been the positive experience that some states have had as a result of the implementation of subsidized permanent guardianship as an additional permanency option. Subsidized permanent guardianship allows a relative or kin caregiver to become a permanent placement for a child in appropriate circumstances without requiring termination of parental rights and adoption. These persons assume responsibilities and receive supports comparable to those associated with adoption. In other states, implementation of this option has resulted in significant numbers of children moving from long term, but legally temporary, foster care placements with relatives to permanent placement with those relatives.15
As the TAC reported in its January 2006 Monitoring Report, the Department succeeded both in getting the Legislature to enact a permanent guardianship option (effective July 1, 2005) and in getting a IV-E waiver (granted by HHS on October 14, 2005) to allow the Department to create a “subsidized permanent guardianship” demonstration project. The Department is working with two very highly regarded consultants from the University of Illinois who have special expertise in the design, implementation, and evaluation of subsidized guardianship demonstration projects.
The regions selected to participate in this project initially are Shelby, Davidson and Upper Cumberland. Special training on subsidized guardianship for these regions began in September. While the University of Illinois and the Department provided the content expertise, the Tennessee Center for Child Welfare (TCCW), the DCS training consortium of thirteen colleges and universities, took responsibility for the development of the curriculum and rollout of this Subsidized Permanent Guardianship Training. This training rolled out in the three pilot regions (Upper Cumberland, Davidson and Shelby) to over four hundred staff who work with families with children in custody toward the achievement of permanency. This included team leaders and case managers, attorneys, permanency specialists, and court liaisons. The training not only focused on the nuts and bolts of how to access the subsidy, but also on how to inform families of the availability of the guardianship subsidy within the context of all of the other permanency options available to them.
The IV-E waiver covers a five-year period and the Department anticipates expanding the project to other regions during the course of that five-year period.
15 For a good discussion of this and other potential benefits of implementing subsidized permanent guardianship, see Testa, M. et al (eds) Family Ties: Supporting Permanence for Children in Safe & Stable Foster Care with Relatives & Other Caregivers (2004) (available on line at www.fosteringresults.org).
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Subsidized Permanent Guardianship became available to eligible families in the demonstration project counties beginning December 7, 2006. In addition, the Department was given waiver authority to afford children and youth with a sole or concurrent goal of Planned Permanent Living Arrangement (PPLA) in the non-demonstration regions a onetime opportunity to qualify for Subsidized Permanent Guardianship. All of these children and youth will be assigned to the experimental group and will, therefore, be able to receive the subsidy. This will be available to these families beginning on January 1, 2007.
3. Exploration of Use of “Unfunded/Under-funded” Relative Placements
a. Kinship Homes for Children in State Custody
With respect to the support of relatives who are serving as “kinship resource homes” (approved relative foster parents), the board rate is the same as the board rate for nonrelative DCS resource homes. However, there are situations in which children in DCS custody are placed in the home of a relative pending that relative’s approval as a resource home. Until a relative has completed the approval process (training, home study, background checks), the relative is not eligible for a board payment. The Department has a special contract with Agape, a private adoption agency, to provide expedited home studies for relatives who wish to be certified as resource families.
The Department is now able to use the expanded resource family reporting capacity of the new TNKids build to identify relative resource homes in which children have been placed pending approval, to ensure that referrals have been made, and to track the approval process of these relatives to minimize the time during which these homes are “unfunded.” In addition, the Department has flex funds which are available to provide some interim support for relative caregivers until they are certified and can receive board payments.
The Department’s focus at this point is on how to expedite the resource home approval process of relative caregivers and how to provide support for those relatives pending approval, to reduce the use of “unfunded” relative and kin placements for children in state custody. With its new data capacity, the Department is looking at the process for approving relatives as kinship resource homes to determine how well the expedited approval process is working, and to determine, among other things, whether there are any disparities in the approval of the kinship home support process.
Using its newly available resource home data, the Department has identified 731 “kinship homes” in which children were initially placed through an “expedited placement,” but which were never approved, 250 of which currently have children in the home. Each region is required to review and report on the experience of these 731 relatives and the Department will be analyzing and following up on this information.
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b. Relative Caregiver Supports for Children Not in State Custody
With respect to the support of relatives who are caring for children not in state custody, in addition to expanding the Relative Caregiver Program, the Department in collaboration with the Department of Human Services, developed a pilot project in sixteen counties (including Davidson and Shelby) to provide an “enhanced Temporary Assistance for Needy Families (TANF) option” for relative caregivers. Under this pilot, relative caregivers receive financial assistance that is larger than the regular TANF grant, but not as large as the “board payment” provided to a licensed resource parent. The hope was that this additional financial support would allow low income relatives to care for children who would otherwise have to come into state custody. The Department has continued to fund the 225 “enhanced TANF” slots that were initially created in 2005 for relative caregivers, but has not yet determined whether provision of this additional option for relative caregivers is an effective strategy.
At the present time, most of the enhanced TANF slots are being used as a “front-end” relative caregiver option to prevent children from coming into state custody. In all counties other than those participating in the subsidized guardianship IV-E waiver demonstration project, enhanced TANF can also be used to support children exiting custody to relatives or kin; however, only East Region is presently utilizing some of the TANF slots for this purpose.
The Department is not presently exploring any disparity regarding relative caregivers for children not in state custody who receive supports from Relative Caregiver Programs or who receive enhanced TANF payments. The Department is not able to say at this point whether African-American relatives tend to be over-represented in the Relative Caregiver Programs (which provide less financial support to relatives than kinship resource families receive) and/or underrepresented as certified kinship resource families.
4. Ensuring that Staff is Trained and Knowledgeable about Financial Supports for Relative Caregivers and Kinship Resource Families
In the January 19, 2006 Monitoring Report, the TAC observed that “staff attitudes toward relative placement, staff skills in identifying and engaging relatives, and staff abilities to understand and connect families with the available supports are critical factors that will determine whether increased numbers of relatives will be willing and able to provide placements for children through the improved support infrastructure for relative caregivers.”
The Department has promulgated policies that clearly articulate the options available to relative caregivers, that direct the case managers to discuss those options with potential relative caregivers, that require the case manager to document those discussions (including obtaining the signature of the relatives with whom they have such a discussion), and to provide the caregivers with a brochure explaining the options.
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The Department has done some training of staff around the options available to relative caregivers. In addition, the Relative Caregiver Programs provide relative caregivers and those who work with them training about the supports available from the Relative Caregiver Programs and some general information on the other options available to relative caregivers.
The Department has also developed a DVD to be used in training on the Child and Family Team process that includes an explanation to a relative caregiver of the options available to relative caregivers. A portion of this DVD related to the subsidized guardianship option has been used in the subsidized guardianship training in the IV-E waiver demonstration sites.
The TAC does not have information on the extent to which case managers are trained in and knowledgeable of the financial supports associated with each option or the extent to which there is a special effort to make sure that this information is communicated to every relative caregiver or potential relative caregiver. However, based on a review of the action steps generated by the work groups at the 2006 Kinship Summit, it appears that relative caregivers and those who work with them continue to have concerns that a significant number of case managers, CFTM facilitators, and other staff are not sufficiently familiar with the range of options and supports available to relative caregivers. As a result, there continues to be concern that a significant number of relatives are not receiving the information they need to access the range of services and supports that are available.
Notwithstanding these concerns, there has been an increase in the number of relative caregivers receiving supports and services through the Relative Caregiver Programs. The increase is largely a function of the expansion of the Relative Caregiver Program into new regions; however, outreach efforts of the Relative Caregiver Programs have certainly resulted in an increased awareness of those programs among relative caregivers and those who work with them (both DCS staff and others).
It is not clear whether there has been an increase in the use of kinship resource homes. Based on initial data from several years ago regarding the utilization of relative resources, the Department concluded that it was not utilizing kinship resource homes to the extent that the Department believed it should, at least in some regions in the state. One indication that case managers are more knowledgeable of the options available for relative caregivers and are more effective in communicating those options to relative caregivers would be an increase in the use of kinship resource homes. If the data on kinship resource home utilization that the Department expects to be available from TNKids in the near future reflects an increase in utilization of kinship resource homes, it
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would be reasonable to conclude that the efforts to ensure good communication between case managers and relatives are having an impact.16
5. Giving special attention to the manner and extent to which these options are communicated to African-American kinship and relative caregivers.
The policies, materials and training regarding options for relatives has not been specifically focused on African-American kinship and relative caregivers, but on kinship and relative caregivers in general.
6. Ensuring that children in kinship foster homes are visited with the same frequency as children in non-kinship foster homes.
The Department policies regarding the number of visits that case managers must make to the resource home that is the child’s placement apply without regard to whether a resource parent is a relative. The Department has not produced any data comparing the frequency of case manager visits to kinship resource homes with the frequency of visits to other homes, nor has the Department produced any data comparing the frequency of case manager visits to African-American kinship resource homes with the frequency of visits to white kinship resource homes.
C. Potential Diversion of Class Members to Juvenile Justice System
The Racial Disparity Study recommended that the Department explore the issue of whether DCS case managers or other staff engage in or support practices which divert dependent and neglected African-American children into the juvenile justice system and, if so, to appropriately address any such practices.
The Department has not yet examined this issue in any formal manner.
D. Staff Recruitment and Retention
The Racial Disparity Study recommended that the Department develop and implement recruitment and hiring strategies designed to increase diversity of staff at those levels of the organization that lack such diversity and to maintain and support diversity at those levels of the organization that reflect such diversity.
16 While the Department is not confident in the accuracy of the baseline data that was the source of the earlier findings regarding the underutilization of kinship resource homes, there was qualitative data that supported the conclusion that relatives were underutilized, even if the level of utilization could not be precisely measured. While a comparison of the new data with the “baseline” from the old data is problematic, if there is a significant increase either statewide or in particular regions, it will likely be an indication of some real improvement. At worst, it would be an indication that the Department had been doing a better job of utilizing relative resources than its earlier data had suggested.
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As part of implementing this recommendation, the Department conducted a “diversity gap analysis” in 2005. The regional data generated by that diversity analysis is included as Appendix B. The Department, in its Human Resources Development Plan, summarized the results of that analysis. The following are the significant findings from that summary:
• Approximately 34% of the DCS staff is African-American, although the civilian workforce for the state of Tennessee is only 14.5% African-American. Since June 2004 the Department has added over 1,000 staff, but the level of African-American employees remained constant at 34%.
• The Department’s present staff is racially diverse at all levels and pay grades, from line staff to senior leadership positions.
• In most regions DCS staff ratios more closely resemble the custodial population than the civilian workforce. For example, in Davidson County, African-Americans comprise approximately 22% of the civilian workforce, but are 65% of the DCS staff. The custodial population in Davidson County is 67% African-American. In two of the other three urban regions (Shelby and Hamilton), African-Americans are a significantly higher percentage of the DCS workforce than the civilian workforce of the county, but in both instances the percentage is similar to the percentage of African-Americans in the custodial population. In all other regions, except Northwest, the custodial population more closely resembles the youth population of the region. In all of those regions the DCS staff ratio is similar to the custodial population. In Northwest, African-Americans are 10.3% of the civilian workforce, 7.5% of the DCS workforce and 26% of the custodial population.
The Human Resources Development Plan notes that traditionally Tennessee state government has not expended resources for recruiting staff. The vast majority of DCS staff positions are civil service positions and must be filled from applicants on state registers. The Department has identified the following efforts that it has made and continues to make in order to ensure that there is a diverse pool of qualified applicants on the registers from which DCS hires staff and promotes staff:
• Continued recruitment through the university consortium BSW and MSW stipend and child welfare certification programs.
• The development of internship programs (both paid and non-paid) for college students exploring an interest in child welfare, as well as areas such as legal, human resources, fiscal, and juvenile justice.
• Establishing formal relationships with colleges and universities to actively recruit on campus, including specific targeted recruitment at historically black colleges and universities.
• Participation at career and job fairs across the state. • Developing career paths to ensure that an appropriate number of employees of all
races have the opportunity to be promoted within the organization.
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• Establishing relationships with civic and community organizations representing ‘other’ races and ethnicities (Hispanic chambers of commerce, etc.).
• Improve the DCS website to include an enhanced personnel webpage with recruitment information.
• Running advertisements in media outlets that target non-white audiences.
E. Cultural Competency Training and Development
The Racial Disparity Study recommended that the Department develop and deliver cultural competency training throughout the organization and set standards for cultural competency that staff are expected to meet.
The Path to Excellence included a provision for the development and implementation of a cultural competency plan to improve the ability of the agency to work effectively in cross-cultural situations.
For case management staff, the focus for cultural competency training has been the new pre-service curriculum. The pre-service curriculum for new workers (and the version of this curriculum developed for existing staff) was developed with a focus on addressing issues of cultural responsiveness throughout the training. Examples of specific references to/focus on cultural responsiveness include:
Course 2: Building Trusting Relationships with Families: • Section 2-6 defines a culturally responsive approach; • Section 2-7 describes the importance of respecting the unique culture of the family; • Section 2-8 articulates how a family-centered, strengths-based, culturally responsive
approach guides their work with children and families; • Section 5-1 describes how one's own culture affects perceptions, behavior and values; • Section 5-2 identifies the elements that make up culture and that define individual and
family cultural identities; • Section 5-3 describes the potential effects of cultural differences on the case
manager/family relationship; • Section 5-4 explains the importance of considering and demonstrating respect for
cultural differences when working with families; • Section 5-5 develops strategies for engaging culturally diverse families; and • Section 7-4 demonstrates the ability to integrate a family-centered, strengths-based,
culturally responsive approach when engaging with an individual.
Course 4: Conducting Family-Centered Assessments: • Section 4-2 explains how cultural differences and personal biases can influence the
assessment.
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Course 6: Family-Centered Planning: • Section 6-2 uses an awareness of the family's culture to develop family-centered
plans that build upon a family's strengths, address their needs, and respect their cultural values; and • Section 6-4 describes the importance of respecting the unique culture of a family.
The competency assessment process, which is to occur throughout the pre-service training period in both the classroom and field practice components, requires that observation and feedback during their practice activities include a focus on the case manager's skills and abilities to be culturally responsive. The final skills assessment and written examination given to case managers during Course 9 before they can assume a formal caseload also addresses the case manager's ability to be culturally responsive in his or her interactions with families.
The Department describes the desired practice as being “strengths-based, familycentered, child-focused, and culturally responsive” and explicitly intends the design of all training for case practice, pre-service, and in-service to reinforce those four elements.
With respect to non-direct service staff, the Department has instituted a one day, mandatory training for all non-direct service staff, using a curriculum that is used by other agencies in state government, not a curriculum specifically designed for human services or child welfare agencies. The training, entitled “Winning Balance”, is intended to ensure that participants:
• realize the impact of today's changing demographics on the workplace; • realize the important role they play in creating a workplace in which people of all
cultures and backgrounds have a chance to succeed; • identify their personal attitudes and behaviors toward differences; • recognize how attitudes toward differences influence their interactions with others;
and • act as a diversity change agent to create a respectful workplace.
The initial phase of this training targeted the non-direct service staff in DCS Central Office. Ninety percent of the targeted employee group in Central Office participated in the training. The Department’s goal is to have the remainder of the Central Office nondirect service staff as well as the regional non-direct service staff and employees of unique divisions trained over the course of the next six months.
The Department intends to develop some further Cultural Competency training, beyond Winning Balance, and has contracted with a private consultation firm to help the Department complete an organizational cultural competency assessment in conjunction with the Multi-Cultural Affairs Committee and to develop specific training to respond to needs identified by this assessment. This further training is envisioned as targeted for all DCS employees. The consulting firm is in the process of performing the organizational assessment.
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SECTION TWO: RESULTS OF THE 2006 CASE FILE REVIEW
INTRODUCTION
The Brian A. Settlement Agreement requires the Department to conduct an annual case file review under the supervision of the federal court monitor.17 The Technical Assistance Committee (TAC) assumed the monitoring responsibilities for oversight of the annual case file review pursuant to the Stipulation entered in December 2003.
In the early years of Tennessee’s reform effort, the case file review was a particularly important source of information to the parties and the monitor, because there were few alternative sources of relevant, reliable quantitative and qualitative data. The Department had difficulty producing useful aggregate data from the TNKids system or from its separately developed “stand alone” databases. Various efforts to hand-collect data and create aggregate reporting from that data were inefficient and prone to error. Furthermore, DCS had no internal qualitative review process. The parties and the monitor were therefore overly dependent on the case file review as the primary vehicle for monitoring progress with the reform effort. Statistics produced from the case file review sample were relied on in lieu of aggregate data for key outcome areas. Qualitative judgments about both child and family outcomes and system performance and practice were made based on case file notes and documentation, in the absence of a Quality Service Review.18
With the dramatic improvements the Department has made over the past two years in TNKids reporting, reliable aggregate data is now available on key performance indicators and outcome measures. In addition, beginning in September 2005, DCS, in collaboration with the Tennessee Commission on Children and Youth, has been conducting Quality Service Reviews using a protocol that provides important qualitative data. As a result of these improvements, the TAC, in consultation with the parties, has been working to tailor
17 Brian A. Settlement Agreement XI.E.3 18 There are limits inherent in reviews that examine written records. First, by necessity, case record reviews measure what is documented about a particular child, family, or activity. It is therefore necessary to assume, for purposes of monitoring, that “if it wasn’t documented, it wasn’t done.” This introduces an unknown degree of error into the findings. If the system shows improvement in future reports, it will be impossible to know how much of that improvement represents better performance and how much of it represents better documentation. Second, case record reviews alone cannot assess the accuracy and completeness of the documentation. Third, case record reviews can determine what has been done, but not the quality or effectiveness of what has been done. For example, a reviewer can learn from the case record that there have been six face-to-face contacts between a case manager and a child over a three-month period and conclude that the case is “in compliance” with a performance standard; however, there is no way to judge reliably, from the case record alone, whether those in-person contacts addressed the important issues affecting the child’s life, helped the child adjust to her new living situation, etc. Similarly, a case record review can show that there is a permanency plan for the child to return home, but it cannot reveal the extent to which this plan has been diligently implemented nor the likelihood that it can be achieved. A well-designed Qualitative Service Review process, involving structured interviews with all of the important individuals involved in a case, is the best way to develop this kind of qualitative data.
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the annual case file review to focus on particular areas that can complement, supplement, and corroborate these other sources of data.
In establishing the TAC’s monitoring priorities for this year, the parties agreed that the 2006 Case File Review would be conducted “using a protocol sufficiently similar to the protocol used by the TAC and QA/CQI staff for the 2005 case record review to permit performance comparisons to the results of that prior review.”19
In order to get the most accurate picture of the Department’s current performance, the 2005 Case File Review focused on the experience of recent entrants into foster care. The sample for 2005 was drawn from the group of children who (a) came into DCS custody between October 1, 2004 and December 31, 2004 and (b) remained in custody for at least three months. The review period ended on March 31, 2005. This created a sample of children who were in care for a minimum of three months and a maximum of six months during the review period.
The 2006 Case File Review focuses on the experience of a comparable group of recent entrants. The 2006 sample was drawn from the group of children who (a) came into DCS custody between October 1, 2005 and December 31, 2005 and (b) remained in custody for at least three months. The review period ended on March 31, 2006. The sample of cases reviewed was randomly selected and stratified by region. The records were reviewed by the TAC monitoring staff over a three month period beginning in June of 2006. Appendix C provides a more detailed discussion of the methodology for the Case File Review.
By focusing on a sample of recent entrants into care rather than a sample of all children in care, the 2006 Case File Review findings more closely reflect the impact of current practice and improvement efforts. In addition, by using a protocol that is comparable to that used for the 2005 Case File Review, this review is able to provide a statistical measure of improvement (or lack of improvement) from 2005 to 2006.
The findings of the 2005 Case File Review were limited by what was documented in the case file. As a result, there were a number of areas in which there were significant numbers of cases coded and reported as “UTD” (unable to determine). In addition, where file documentation was absent, there was no effort to determine whether there had been relevant case activity and a failure to document that activity, or whether the lack of documentation accurately reflected a lack of relevant case activity.
In this year’s Case File Review, reviewers identified areas in which documentation was absent, incomplete, ambiguous or unclear, including cases for which the answer to a question was “UTD.” In those cases, reviewers requested additional documentation from the appropriate DCS and/or private provider agency staff, and reflected relevant
19 Monitoring Plan in the Case of Brian A. v. Bredesen (May 12, 2006), page 6. The plan further states that “the case record review will be designed to collect information relevant to the Settlement Agreement provisions that is not sufficiently gathered by the Department’s aggregate reporting process or by the QSR process, but which can be reasonably captured by a case file review.”
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information provided in the reported results. This has resulted in a reduction of the number of cases coded “UTD” and an increase in the ability of the TAC to distinguish between the absence of relevant case activity and the failure to document relevant activity.20
SUMMARY OF FINDINGS
As was the case last year, when measured against the goals appropriately set for the Department by the Settlement Agreement, the DCS Path to Excellence, and the DCS Practice Model, the Case File Review reflects that the Department’s practice does not yet meet its own performance expectations. Nevertheless, there are a number of important areas in which this year’s case file review documents a higher level of system performance than that found last year, including the following:
• Increased attendance of older children and youth at Child and Family Team Meetings;
• Increased DCS case manager contacts with children;
• Increased private provider agency case manager contacts with children;
• More frequent visits between children and their family of origin;
• More frequent visits between children and their siblings who are not placed together;
• Higher percentage of children receiving services related to identified medical needs;
• Higher percentage of children receiving services related to identified mental health needs; and
• Higher percentage of children who are represented by guardians ad litem.
In addition, those areas which the TAC identified as relative strengths last year continue to be areas of strength this year:
• DCS has maintained previous gains in keeping children in normalized settings— placing them with families and keeping children, including many with specialized needs, in regular schools. Although there were somewhat more children placed initially in non-family placements this year compared to last, children are most often initially placed in family settings rather than in non-family settings; and, by the end of the review period, 91% of the children were in family placements (comparable to last year). While there is still a need to recruit additional resource families for teenagers,
20 At least some of the improvements identified in this year’s Case File Review may be the result of the ability of the reviewers this year to request, receive, and consider additional documentation. It may be that last year’s findings would have been more positive had a similar follow-up procedure been followed in that review, and that the degree of improvement from last year to this year would therefore have been less.
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children under the age of 13 are almost always initially placed in family settings. The vast majority of class members continue to attend public rather than in-house schools.
• The vast majority of children who come into custody are having initial Child and Family Team Meetings and permanency planning CFTMs, with most meetings happening within the required timeframes.
• Children were placed with some or all of their siblings in 85% of cases in which children had a sibling(s) in custody. Most, if not all, of the cases in which siblings were separated fell within one or more of the Brian A. exceptions permitting separation of siblings under certain circumstances.
There are also a number of findings that reflect continuing challenges for the Department’s performance. These findings are clustered in four areas: stability (of placement, school, and key relationships); well-being of children in care; Child and Family Team formation; and documentation/data accuracy.
Stability:
• Children in DCS custody continue to experience far too much instability and disruption because of placement moves and changes in school.
• In the majority of cases in which a child experienced placement disruption, placement stabilization services were not provided to prevent the disruption.
• Notwithstanding improvements in the areas of children visiting with their family of origin and children visiting their siblings, DCS continues to have difficulty in a significant number of cases in ensuring the frequency and quality of family contact that is so important to maintaining family connections and reducing the trauma of placement.
• Notwithstanding improvements in the area of case manager contacts with children, case managers in a significant number of cases continue to have difficulty having contacts with children in placement with the required frequency.
• Children, including those who have been in care a relatively short period of time, too frequently experience a change in case manager.
Well-Being:
• Notwithstanding improvements over last year, better performance is needed to ensure that children receive services for identified medical and mental health needs in a timely manner.
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• Educational concerns related to school attendance, assessment for special education services/provision of special education services, and school achievement were identified in a significant number of cases.
• DCS procedures for identifying, tracking, and following up on maltreatment and serious incidents for children in DCS custody need to be integrated and coordinated to ensure that there is appropriate follow-up both in addressing individual situations and in identifying and responding to systemic problems.
Child and Family Team Formation: • Notwithstanding the improvements over last year, significant numbers of older
children and youth are not participating in their initial Child and Family Team Meetings. • School representatives do not appear to be routinely included as members of the Child and Family Team for school-age children.21 • Despite the legal mandate that each child be represented by a guardian ad litem and notwithstanding the increase in the number of children represented by guardians ad litem in this year’s sample, there remain a surprising number of children who do not have a legal advocate.
21 It is not possible from a case file review to make any findings regarding the extent to which the Child and Family Team Meetings are of the quality contemplated by the Practice Model, and it is not possible to say simply from a person’s presence at a Child and Family Team Meeting that the person actively participated in the meeting. However, the absence of an older child from a Team Meeting or the absence of a child’s teacher or school counselor in cases in which there are significant educational issues, suggests that more attention should be paid to team formation as a prerequisite for an effective Child and Family Team Meeting.
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Documentation and Data Accuracy: • There continue to be problems with the accuracy of data in TNKids. • A considerable number of case files contain significant gaps in documentation. • TNKids documentation for private provider-managed cases continues to be a
challenge, because private providers have not had access to the TNKids system for entering case activity and service provision information.22
PRESENTATION OF CASE FILE REVIEW RESULTS The results of the 2006 Case File Review are organized and presented under the following eight topic headings: Placement, Visits and Family Contact, Child and Family Team Meetings, Services and Child Well-Being, Case Transfer, Maltreatment While in DCS Custody, Case File Contents, and Legal Advocacy. Relevant comparisons with 2005 Case File Review results are included in the text. In addition, comprehensive tables comparing the 2006 Case File Review data with 2005 Case File Review data are included as Appendix D.
22 There was a greater level of private provider activity documented in the case files this year. A uniform reporting form has been created to capture private provider data so that it can be entered into TNKids. This was not in use at the time of the review, but has since become required of all private provider agencies. In addition, there has been some recent progress in developing and implementing a web based application that will allow private providers to interface with TNKids and enter case activity and service provision documentation. This will allow DCS to hold private providers accountable for ensuring that their work with children and families is accurately documented in the case file.
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I. Placement
It is traumatic for children to move from their homes to a completely new environment, even when they are at risk of maltreatment in their home environment. A child’s home community is the source of that child’s identity, culture, sense of belonging, and connection with things that give meaning and purpose to life. For this reason, both the DCS Practice Model and the Settlement Agreement emphasize placing children with siblings, close to their home and community, and in the least restrictive placement possible, utilizing foster families drawn from a child’s kinship network whenever possible rather than placing a child with strangers.
Family members, relatives, friends, and members of a child’s community who already have a connection with and commitment to the child are critical potential resources. They can serve as a support network for the children and the family, including serving as possible kinship placements for a child coming into care. For this reason, the Department in its Practice Model and implementation plan emphasizes identifying, at the earliest stages of DCS involvement with a family, relatives and others with connections and commitment to the child(ren), and aggressively exploring this natural kinship and community support system for potential foster home placements as an alternative to placing children with strangers or in congregate care facilities. By utilizing kinship foster homes, not only can the trauma of removal be minimized for the child, but available foster homes can be saved for children who do not have those kinship options.
In cases in which children coming into custody cannot be placed with kin, children should in most circumstances be placed in a non-relative foster family setting. When siblings come into state custody, they should normally be placed together in the same foster home.
Congregate care placements should only be used when a child’s needs cannot be safely met in a foster family setting.
In order to better understand the Department’s performance with respect to the placement process, reviewers gathered and analyzed data related to placement type (both initial placement type and placement type at the end of the review period), placement stability, and sibling separation.
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A. Placement Type
1. Child’s Initial Placement Type
The Case File Review collected information about the initial placements of children upon entry into DCS custody. Of the 268 children in the sample, 265 children were placed in “out-of-home” placements; three remained in “in-home” placements for the entire review period.23 Of the 265 children in out-of-home placements, 84% (222) were initially placed in family or foster home settings.
Of the 43 children (16%) who were initially placed in non-family settings, 22 were initially placed in emergency shelters or Primary Treatment Centers (PTCs), eight in medical facilities, seven in group homes, five in residential treatment facilities, and one child was placed in a “supervised transitional living home.”24
While the percentage of children in this year’s sample initially placed in family settings was somewhat lower than in last year’s sample,25 much of that difference is attributable to the number of children who came into care from hospital settings.26
As was the case last year, most of the congregate care placements were placements of teenagers. The only children under 13 years of age not placed in family settings were: seven children under the age of two and one 11-year old who each began their custody episode in hospital settings;27 one 11-year- old initially placed in a PTC, and one 12-yearold initially placed in a “supervised transitional living home.” (See Figures 1 and 2).
23 An “in-home” placement ordinarily results from a child coming into legal custody of the Department, but not being physically removed from his or her home. Of the three children in the sample who were in inhome placement, one was with his father. The two others, siblings, were in “in-home” placements, each with a different aunt with whom they had been placed pursuant to a DCS safety plan and a less than clear proceeding in juvenile court. Neither aunt had legal custody nor was either aunt approved as a kinship home. 24 This one child resided in the Dyer County Union Rescue Mission with two adults (program directors) and one other child who was close in age to this child. According to supplemental documentation received from the Department, this program is run “like a busy household.” The directors are “a willing ear” and are “always available” for the children. The Department felt this to be the best temporary placement for the child until her father could be contacted. It was the most homelike setting that could be provided at the time (a holiday weekend) to give her the safety and security that she needed. The child resided at the Mission for two days. 25 In the 2005 Case File Review, 90% of the children in the sample were initially placed in a family setting. 26 In the 2005 Case File Review 1% of 276 children were initially placed in a medical facility. 27 Under the terms of the Brian A. Settlement, hospital stays of up to ten days are not considered placements, while longer stays are. All eight children who began their custody episodes with hospital stays in excess of ten days were discharged from the hospital setting to a foster family setting.
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Figure 1: Child's Initial Placement (n=265)

Family Setting 84%

Congregate Care 16%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period
Figure 2: Child's Initial Placement by Family or Congregate Care Setting Type (n=265)
52%
16% 16% 3% 4% 2% 3% 4% 0%

DCS Licensed Foster Home Kinship Foster
Home Agency Foster
Home Group Home
Primary Treatment
Center Residential Treatment
Facility Medical Facility/Hospital Emergency or Temporary Facility/Shelter Supervised Transitional/IL (Union Mission)

Family or Foster Home Setting

Congregate Care

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period

2. Child’s Placement Type at End of Review Period
Notwithstanding the decline in the percentage of children initially placed in family or foster family settings in this year’s sample, by the end of the review period, children were placed in family or foster home settings (DCS licensed foster homes, kinship homes, and

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private provider foster homes) in 91% (240) of the 265 cases.28 Of the 25 children (9%) who were in congregate care settings at the end of the review period, one child was placed in a Primary Treatment Center (PTC), five were placed in residential treatment facilities, one was placed in a hospital for psychiatric care, one was in a detention facility, and 17 were placed in group home settings. (See Figures 3 and 4).
Figure 3: Child's Placement at End of Review Period (n=265)

Family Setting 91%

Congregate Care 9%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period

28 The 2005 Case File Review did not report on data placement type of children at the end of the review period.
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59%

Figure 4: Child's Placement at End of Review Period by Family or Congregate Care Setting Type (n=265)

31%

6%

0%

2%

0%

0%

DCS Licensed Foster Home Agency Foster
Home Group Home
Primary Treatment
Center Residential Treatment
Facility Psychiatric Facility/Hospital Jail/Detention
Facility

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period
3. Kinship Placements
In order to provide information relevant to the Department’s efforts to identify and utilize kinship resources, reviewers gathered data on the number of children in the sample who were placed in a kinship foster home at some point during the review period and on the number of children whose initial placement was a kinship foster home.29
Figure 5 provides information about the percentage of children initially placed in kinship homes. Of those placed in family/foster home settings, 42 children, representing 16% of the children placed out-of-home, were initially placed in kinship homes, a somewhat lower percentage than was the case for last year’s review sample.30

29 Reviewers used the definition of kinship set forth in DCS Policy 16.4: “any person who has a significant relationship with the child.” 30 In the 2005 Case File Review 21% of the children in the sample were initially placed in a kinship home at time of entry.
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Figure 5: Child Placed in Kinship Home at Time of Entry (n=265)
Yes 16% No 84%
Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period
As shown in Figure 6, 72 children (27%) were placed in a kinship home at some point during the review period.31
Figure 6: Child Living with Kin at Some Point during the Review Period (n=265)

No 73%

Yes 27%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period
Of the 72 children, 54 were placed with blood relatives and 18 were placed with “fictive kin” (non-relatives with whom they had a significant pre-existing relationship). (See Figure 7).
31 The 2005 Case File Review gathered data on children initially placed in kinship homes and children who were placed in kinship homes at the end of the review period. Data was not gathered about kinship home placement at any other times during a child’s time in custody. Twenty-six percent of the children in the 2005 sample were in kinship homes at the end of that review period.
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Figure 7: Type of Kin Placement (n=72)

Blood 75%

Signif ic ant relationship
25%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children living with kin at some point during the review period
4. Placement in Emergency or Temporary Placements
Placements in Emergency Shelters and Primary Treatment Centers (PTC) are generally disfavored placements. Among other things, these placements introduce a degree of instability for a child because, by design, they do not provide continuity in caring relationships and consistency of settings and routines. These placements are intended to be short-term, safe places for a child while a good decision about a placement is made or until a more appropriate placement becomes available. Placement in an emergency shelter or PTC guarantees that the child will experience at least one more move and therefore contributes to the placement instability discussed in the next subsection of this report.
Children in 13% (35) of the cases reviewed were placed in an emergency shelter or PTC initially and/or at some other point during the review period.32 This is an increase in the number of children placed in an emergency placement compared to last year’s findings.33 (See Figure 8).

32 Children who have behaviors that could put them or others at risk may be placed temporarily in a PTC for assessment in order to determine the most appropriate placement for the child; however, PTCs are sometimes misused as emergency placements when appropriate placements are not available. 33 In the 2005 Case File Review, 7% of the children in the review sample were placed in an Emergency or Temporary Facility during the review period.
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Figure 8: Placement in Emergency or Temporary Facility during the Review Period (n=265)

Yes

No

13%

87%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period
5. Placement in a Detention Center
Detention Centers are not considered appropriate placements for class members. Six children in this year’s sample were placed in a detention center at some point during the review period. Two of these children spent time in both emergency/temporary facilities and detention.
Two children came into detention after a runaway episode (one child spent one day in detention and the other spent ten days in detention while awaiting a court date).34 One child disrupted her trial home visit and was brought to detention (where she spent two hours before being released). Two children were charged with misdemeanor offenses (both spent one day in detention) and one child spent four hours in detention after getting into a fight in school.
B. Placement Stability
Continuity in caring relationships and consistency of settings and routines are essential for a child’s sense of identity, security, attachment, trust, and optimal social development. The stability of a child’s out-of-home placement will impact the child’s ability to build trusting relationships and form attachments.35 For this reason, improving placement stability is a high priority for the Department.
34 According to supplemental documentation provided by the Department, the child entered detention during Thanksgiving weekend and remained in detention until his court date on December 1. This appears to be a violation of the legal limits on secure detention of status offenders. 35 Placement stability is not the only factor that affects the stability of children in care. It is important to ensure that children also have continuity of relationships and consistency of settings and routines in other areas. Changing schools and changing case managers are among the disruptions that contribute to
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In order to provide placement stability for children in custody, it is critical that a good decision be made about a child’s first placement. Matching children with the right foster family and wrapping services around that child and foster family to make that placement work for the child is the goal. Focus should be on improving the placement process so that the percentage of children experiencing “no moves” is increasing and so that those children who do change placements move no more than once.
1. Number of Placements/Placement Moves
The 2006 Case File Review sample consisted of children who had been in custody for six months or less, and therefore the Case File Review provides information on stability in the early months in custody rather than overall stability for the foster care population. It might seem intuitively that, given the relatively short time that children in the sample were in state custody (three to six months) there would be less opportunity for (and therefore less likelihood of) a placement move. However, as reported in previous TAC reports, the aggregate data shows that in fact most movement for children in DCS custody occurs during the first six months in out-of-home placement.36 Consistent with this finding, the case review identified a significant number of children in the sample who experienced placement moves during the review period. Fifty-two percent (139) of the children experienced at least one placement move; 18% (49) experienced more than one move. Forty-eight percent (126) of the sample remained in the same placement throughout the review period, compared to 55% in last year’s sample.37 (See Figure 9).
instability for children in foster care. Findings related to these kinds of stability indicators are discussed in Subsections IV and V below. 36 Monitoring Report of the Technical Assistance Committee in the case of Brian A. v. Bredesen, January 19, 2006, page 34. 37 As previously discussed in subsection I, a number of children began their custody episode with a hospital stay and were released to a family foster home. These children may account for some of the difference between this year and last in the percentage of children who experienced no moves during the review period. In any event, the percentage of children experiencing “no more than one placement move,” was 81% in 2005 and 82% in the 2006 sample. The parties may want to give some thought to the way in which hospital stays are counted. In this year’s sample, a medically fragile child was extremely well provided for by a single foster family for the entire review period; however, the child experienced frequent hospital stays, two of which were in excess of ten days. For purposes of reporting under Brian A., this child is counted as having been in four placements during the review period.
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Figure 9: Child Experienced at Least One Placement Change During the Review Period
(n=268)

No 48%

Yes 52%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period

Figure 10 below shows the number of placements that children in the sample experienced during the six-month review period.

48%

Figure 10: Number of Placements during the Review Period (n=265)

34%

12%

4%

1%

One

Two

Three

Four

Five

Number of Placements

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children who were placed out-of-home during the review period

1% Six or more

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2. Documentation of Reasons for Placement Move
Reviewers were asked to indicate for those children who experienced a change in placement whether the case file documented the reason for the most recent placement change.
In 69% (96) of the 139 cases in which a child changed placements during the review period, the reviewers found clear documentation of the reason for the most recent placement change.38 (See Figure 11). In some of the remaining 43 cases (31%), the case file showed that a child was in one placement on one day and in another the next, without any specific case notes about the child’s move; in other cases the move was noted in the case recordings, but no information given about why the most recent move was necessary.
Figure 11: Case File Clearly Documents Reason for Placement Change (n=139)

Yes

No

69%

31%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals those children who changed placements during the review period
3. Placement Moves to Maintain or Create Family Connections
A placement change that is made for the purpose of maintaining or creating family connections is often in the best interest of the child because of the importance of family connections and community ties to a child’s healthy development.39 In addition, such placement changes often are moves toward permanency for the child.
38 In the 2005 Case File Review, reviewers found clear documentation of the reason for the placement change in 80% of 124 cases in which children experienced a placement change. 39 In the DCS Practice Model, viable relative resources should be identified and mobilized at the front-end of a case. For this reason, while a placement move from a non-relative placement to a kinship home is often a positive move for the child, in some cases such a move may be a reflection of less than optimum front-end casework, resulting in the failure to utilize relative and fictive kin resources as the initial placement.
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Reviewers considered a move to be related to maintaining/creating family connections if the move was from a non-kinship placement to a kinship placement; from one kinship placement to another kinship placement; or from a distant placement to one in close proximity to the birth family. Reviewers also considered a move to be related to maintaining/creating family connections if the move was to a home that reunited previously separated siblings, or if the move was to a pre-adoptive or adoptive home. Reviewers made this judgment irrespective of whether the case notes explicitly articulated the purpose of the move.
As reflected in Figure 12 in 22% (30) of the 139 cases in which the child changed placements during the review period, reviewers judged that the child’s most recent placement change was made in order to maintain or create family connections. Last year, 28% of the placement moves were judged to be moves that maintained or created family connections.
Figure 12: Reason for Most Recent Placement Change during the Review Period (n=139)

Not related to family
connections 78%

Maintain/Create family
connections 22%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals those children who changed placements during the review period
4. Provision of Stabilization Services Prior to Placement Change
Some placement moves are positive events for the child: a discharge from a hospital to a foster home, a move from congregate care to a foster family setting, or a move to be with family members. Other placement moves occur because of conditions that could not or should not be ameliorated by stabilization services, such as the death or serious illness of a resource parent or the abuse of the child in a foster home. However, in some circumstances, potential disruptions from otherwise appropriate and viable placements can be avoided by timely provision of supportive services to the child and/or family. Reviewers looked at the circumstances of each case in which there was a placement move and determined first whether the situation was one in which good practice would have called for an effort to provide such stabilization services and, if so, whether there was documentation that such services had been provided.
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Reviewers judged that services should have been provided to stabilize the placement from which the child moved most recently in 56 cases in which there was a move. The case file documented that services were provided to stabilize the placement in 7% (4) of these 56 cases. This is a somewhat lower level of documentation than was the case last year. (See Figure 13).40
Figure 13: Case File Documents Provision of Services to Stabilize Placement (n=56)

No

Yes

93%

7%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals those cases for which reviewers judged stabilization services should have been provided
C. Sibling Separation
The DCS Practice Model recognizes the importance of maintaining and nurturing sibling relationships. The Settlement Agreement requires that siblings should be placed together, “unless doing so causes harm to one or more of the siblings, one of the siblings has such exceptional needs that can only be met in a specialized program or facility, or the size of the sibling group makes placement impractical notwithstanding diligent efforts to place the group together.”41
As of the end of the review period, a total of 85% (104) of the 122 cases of children who had a sibling(s) also in custody were placed with some or all of their siblings. In 71% (87) of the cases the child was placed with all of his or her sibling(s) and in 14% (17) of the cases the child was placed with some but not all siblings. In 15% (18) of the cases the child was not placed with any siblings as of the end of the review period. (See Figure 14). This is an improvement from last year’s findings.42
40 In the 2005 Case File Review, 14% of 56 case files documented provision of services to stabilize placement. 41 Brian A. Settlement Agreement VI.C.6. 42 The 2005 Case File Review reported 80% of 162 children who were placed with some or all siblings (62% were placed with all siblings and 18% were placed with some siblings).
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Figure 14: Child Placed with Siblings in Custody as of the End of the Review Period (n=122)
71%

14%

15%

Placed with all siblings Placed with some, but not all, siblings

Not placed with any siblings

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS n equals all cases of children who were placed in out-of-home care with siblings also in custody as of the end of the review period and excludes one case where the child entered custody with and was separated from an older sibling who turned 18 ten days later and exited custody
Of the 123 children with siblings in custody, 18% (22) were separated from all siblings at some point during the review period. Eighteen percent (22) of children were separated from some of their siblings in custody at some point during the review period.43 (See Figure 15).
Figure 15: Child Was Separated from Siblings in Custody at Some Point during the Review Period
(n=123)

Placed with all siblings 64%

Separated from all siblings 18%
Separated from some siblings
18%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children who were placed in out-of-home care with siblings in custody at some point during the review period. This includes the child whose case was excluded from the n in the previous Figure.

For cases in which children were separated from some or all of their siblings at some point during the review period, reviewers looked for information in the case files about
43 In the 2005 Case File Review, data was not collected for children separated from siblings in custody at some point during the review period.
45

whether the case manager or the Child and Family Team had decided that the separation was in the best interest of the siblings and also requested supplemental documentation from the Department.
Based on both information in the case files and the supplemental documentation provided by the Department, reviewers concluded that all sibling separations fell into one or more of the exceptions of the Settlement Agreement permitting sibling separation. Of these 44 cases:
• Seven children were separated from their sibling because the child or sibling was placed in a medical facility for over ten days.
• Nine children were each part of large sibling groups that were unable to be placed together.
• In 17 cases, the child or the child’s sibling was aggressive and needed a higher level of care.
• Four children were separated because of behavior problems.44 • Five children had half-siblings placed with paternal families.45 • In two cases there were other reasons for sibling separation.46
This is a significant improvement over last year’s findings.47
44 In some cases there was specific information about the problematic behaviors on which the Department was basing its decision to separate siblings. In other cases, there was reference to siblings having conflicts with each other as the reason for the separation, but reviewers could not judge the extent to which the conflicts were outside the ranges of normal sibling interaction or the extent to which efforts were made or should have been made to provide services to address those behaviors and allow the siblings to remain together. 45 Five children were separated from their half-siblings: one child came into custody at a different time and from a different home than his half-sibling, and the Department did not know they were related; two of these children were siblings and they were placed with their paternal grandmother, while their half-siblings (the children have different fathers) were placed with their paternal grandmother; the remaining two children were siblings placed with their father while their half-siblings (who have a different father) went to live in a foster home. 46 One child was in custody with his sibling for ten days before the sibling turned 18 and exited custody. In the other case DCS planned a gradual return of the children to their home where younger children returned home and then the older children returned so as to ease the transition for the mother. 47 The 2005 Case File Review found documentation that 50% of the 54 children separated from their siblings were separated for reasons that were “in their best interest.”
46

II. Visits and Family Contacts
The Settlement Agreement and/or Department policy require regular visits:
• between the child and the primary caregiver(s);48 • between the child and his or her siblings if they are placed separately; • between the child and the case manager; • between the case manager and the child’s family of origin; and • between the case manager and the child’s foster parents or facility staff.
The Case File Review collected information on the frequency of each of these types of visits.49
A. Child-Parent Visits
The DCS Practice Model and the Settlement Agreement highlight the importance of preserving family relationships through meaningful visits between the parents and child that provide an atmosphere conducive to developing and maintaining non-detrimental family relationships and attachments, regardless of the permanency goal. Department policy states that visits between children and their families shall be no less than one hour per week, and that every effort shall be made to ensure that children and families have more than one hour per week to visit with one another.50
1. Frequency of Child-Parent Visits
Of the 268 cases reviewed, reviewers determined that in 246 cases, visits would be appropriate and expected between the child and his or her primary caregiver.51 Of those 246 cases, 62% (152) documented visits between the child and primary caregiver at least one time per month. This represents an increase from last year’s findings.52 Twentyeight percent (70) of the cases documented visits between the child and primary caregiver that were less than monthly, and 10% (24) of the cases did not document any visits
48 The term “primary caregiver” is used to refer to the parent(s) or surrogate parent caregiver from whom the child was removed and/or to whom the child is intended to return. 49 The term “visit” as it is used in this report does not necessarily indicate a time specifically set aside solely for the purpose of providing the relevant parties the opportunity to spend time with each other. Reviewers looked at the contacts between the relevant parties, the context of the contact, and the interaction between the relevant parties to determine whether to count the contact as a visit. Visits would include, for example, one-on-one time spent by the case manager with the child while transporting the child to a doctor’s appointment or to a Child and Family Team Meeting. 50 DCS Policy 16.44 BA 51 The 22 cases that were not assessed for visits were cases in which the case file clearly documented that: parental rights were terminated; the caregiver’s whereabouts were unknown; the child was placed with the primary caregiver; or contact with the caregiver was not in the child’s best interest. 52 In the 2005 Case File Review, visits occurring between the child and his or her primary caregiver at least one time per month were documented in 42% of the cases; weekly visits were documented in 12%.
47

occurring between the child and primary caregiver between October 1, 2005 and March 31, 2006.53 Eighteen percent (45) of cases documented weekly visits. (See Figure 16).
Reviewers noted in 49 cases, based on statements in the case file, that visits seemed to be occurring more frequently than specifically documented.54 For instance, in one case file there were recordings indicating that a child placed with a relative was seeing her mother at family gatherings, but the dates of those visits were not specifically documented. In another case file there was reference to a visitation schedule, but there were not specific notes that visits had occurred on specific dates. This documentation problem appeared to be more common in cases in which visits were scheduled and facilitated by someone other than the case manager, such as a relative or a foster parent. Because reviewers counted only those visits that were specifically documented in the case file, the data may reflect a lower percentage of visits in these cases than actually took place.

Figure 16: Frequency of Child's Visits with Primary Caregiver (n=246) 28%
25%

18%

19%

10%

Generally weekly

Generally biweekly

Generally monthly

Less than monthly

Not at all

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes cases in which parental rights were terminated or the caregiver’s whereabouts were unknown, cases in which the child was placed with the primary caregiver, and cases in which contact with the caregiver was not in the child’s best interest.
The Department was asked to provide responses to all of the cases in which documented visits between the child and his or her primary caregiver were occurring less than monthly or not at all. This follow-up had two purposes. The first was to determine whether any of these children had in fact been visiting more frequently than was

53 In one case, the child’s mother lived in the foster home with the child for part of the review period.
Visits were only assessed after the mother moved out of the home, and these occurred less than monthly. 54 In 22 of these cases, the case file documented that the child saw the primary caregiver at least one time
per month, less than monthly visits were documented in 23 of these cases, and in four of these cases no
visits were documented.

48

documented in the file. The second purpose was to ensure that corrective action could be taken by the Department with respect to any of the children still in custody who were visiting less than monthly.
In some cases the Department asserted that visits had occurred more frequently than the reviewer had found from the Case File Review. In those cases, the reviewers rechecked TNKids for corresponding documentation and, if the visits were documented in TNKids at the time of the recheck, those visits were included in the calculation of visit frequency reflected in Figure 16 above.
In some of the other cases for which the reviewers requested follow-up information, the Department did not contest the reviewers’ finding that visits had not occurred, but asserted that these were cases in which visits should not have been expected to occur, based on special circumstances. In some of these cases, the supplemental documentation provided by the Department clearly established that the lack of visiting was a result of circumstances beyond the Department’s control. Examples include a parent who was in jail in another state, a parent who was a fugitive from justice, and a parent who could not be located despite specific steps taken by the Department as part of its “diligent search.” In other cases, the Department simply stated that visits did not occur because the parent could not be located or did not show up for scheduled visits or was uncooperative, but did not provide any specific information about the circumstances or about the efforts made by the case manager to locate, connect with, or engage the parent.
Figure 17 below presents data regarding children’s visits with their primary caretaker after adjusting for any cases in which the Department’s supplemental documentation was construed as an assertion that the visits between the child and his or her primary caregiver would not be reasonably appropriate/expected under the circumstances of the case.
Based on this adjustment, visits would have been appropriate and expected between the child and his or her primary caregiver in 222 of the 268 cases reviewed. Of those 222 cases, 68% (152) documented visits between the child and primary caregiver at least one time per month. Twenty-six percent (57) of cases documented visits between the child and primary caregiver less than monthly, and 6% (13) of the cases did not document any visits occurring between the child and primary caregiver between October 1, 2005 and March 31, 2006.55 Twenty percent (45) of cases documented weekly visits. (See Figure 17). This represents a significant improvement from last year’s findings.56
55 In one case, the child’s mother lived in the foster home with the child for part of the review period. Visits were only assessed after the mother moved out of the home, and these occurred less than monthly. 56 See Footnote 52. It may be that last year’s findings would have been more positive had a similar followup procedure been followed in that review, and that the degree of improvement from last year to this year would therefore have been less. See footnote 20.
49

Figure 17: Frequency of Child's Visits with Primary Caregiver (Adjusted) (n=222)

27% 26%

20%

21%

6%

Generally weekly

Generally biweekly

Generally monthly

Less than monthly

Not at all

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes cases in which parental rights were terminated or the caregiver’s whereabouts were unknown, cases in which the child was placed with the primary caregiver, and cases in which contact with the caregiver was not in the child’s best interest.

2. Type of Child-Parent Visit

Reviewers also collected data on whether child-parent visits were supervised or unsupervised and whether any of the visiting involved overnight visits with the parent.

Of the 246 cases assessed for visits, there were 222 cases in which visits occurred. In 55% (122) of the 222 cases, all of the documented visits were supervised. In 17% (38) of the 222 cases all of the documented visits were unsupervised; in 22% (49) documented visits were a combination of supervised and unsupervised; and in 6% (13) of cases, documentation was insufficient to determine whether the visits were supervised or unsupervised.

Overnight visits occurred in 25% (56) of the 222 cases.

B. Sibling Visits for Siblings Placed Apart
The DCS Practice Model emphasizes the importance of helping siblings who are placed separately maintain and further develop their relationships by providing regular opportunities for them to visit each other. The Settlement Agreement requires that siblings not placed together visit each other as frequently as necessary and appropriate to facilitate sibling relationships but no less frequently than once each month.57
57 Brian A. Settlement Agreement XVI.B.2a-b.
50

Of the 44 children who were separated from one or more of their siblings at some point during the review period, reviewers judged visits with the separated sibling(s) to be appropriate for 36 of those children.58 Of those 36 children, 72% (26) had documented visits between the child and siblings at least one time per month. This represents an increase from last year’s findings.59 Seventeen percent (6) of the cases documented visits between the child and siblings as occurring less than monthly, and 6% (2) of the cases did not document any sibling visits. In two cases, reviewers determined that different frequencies of visits were occurring for different siblings of the same child.60 (See Figure 18).
Figure 18: Frequency of Child's Visits with Siblings (n=36)
44%

22% 6%

17%

6%

6%

Generally Generally bi- Generally

weekly

weekly

monthly

Less than monthly

Not at all

Different frequencies for different
siblings

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which the child had siblings in custody with whom he or she was not placed and with whom visits would have been appropriate

C. Case Manager-Child Visits
58Eight cases were not included in the assessment of sibling visits for various reasons. In one of the cases, the court ordered no contact between the child and his siblings. In one case the reviewer was unable to determine at the time of the review whether siblings were placed together or separately. In another case the reviewer was unable to determine whether sibling visits were appropriate. In two cases, the siblings were separated for less than one month during the review period and those two cases were not assessed for visits. In three cases a member of a sibling group who lived together spent a period of time in the hospital, and this hospital stay was counted as a separate placement for some purposes, however for the purpose of assessing visits, the siblings were coded as not being separated. 59 In the 2005 Case File Review, 51% of 47 cases assessed for sibling visits documented visits occurring at least one time per month. 60 In one case the reviewer noted that the child was seeing some siblings weekly and some siblings generally monthly. In the other case the reviewer noted that the child had some visits with some siblings but did not visit with all siblings.
51

Visits between the case manager and child assist in ensuring the stability and well-being of the child. Visits allow the case manager to assess on a regular basis how the child is adapting to his or her placement, to monitor safety issues, and to stay current on the various issues affecting the child. Visits at the child’s placement are particularly valuable when assessing safety issues and allow the case manager an opportunity to interact with foster parents or facility staff. Such visits allow for the early identification of problems in the foster home or facility and keep the case manager apprised of whether needed services are being provided and are having the intended impact. Case managers are required to ensure some time for private conversation with the child away from the caregiver as a means of encouraging the child to talk openly with the case manager about any concerns that the child might be uncomfortable discussing in the presence of the caregiver or facility staff.
1. Visits During the First Eight Weeks in a New Placement
The Settlement Agreement contemplates that the time immediately following removal from a home of origin or immediately following a move from one placement to another is unsettling for the child and therefore requires more frequent contact between the case manager and child than that needed once a child has had a chance to settle into a placement. The Settlement Agreement therefore requires that case managers visit a child six times during the first eight weeks in a new placement. In a private provider-managed case, expectations for private provider case manager visits are the same as those for DCS case managers with children in DCS foster homes.61
For children in the sample who remained in their initial placement for the entire review period, there was only one relevant “first eight weeks” for reviewers to examine. For children in the sample who were in more than one placement during the review period, reviewers collected information regarding “case manager visits in the first eight weeks of placement” for the child’s most recent placement during the review period. For ease of reference in this section, reviewers use the term “most recent out-of-home placement” to include the initial and only placement of those children who did not experience a placement move during the review period.
There were 239 cases of children in the sample who had been in their most recent out-ofhome placement for at least eight weeks as of the end of the review period. In 53% (126) of those cases, the case file documented that all of the required visits took place between
61 Brian A. Settlement Agreement VI.K.1-2.
52

the case manager and the child.62 In 91% (218) of the cases, the child was visited three or more times during the first eight weeks. This represents a substantial improvement over last year’s findings.63 There were eight cases (3%) in which only one contact with the case manager was documented in the file for the first eight weeks in the new placement.64 (See Figure 19).
62 Only contacts made by the assigned DCS Home County Case Manager were counted unless there were extenuating circumstances documented such as the case manager being on medical leave. Reviewers only counted contacts when documentation clearly illustrated interaction between the case manager and the child. For example, in one case, the case manager documented that she visited the child at school but only observed him and did not talk to him. Reviewers did not count this observation as constituting the kind of visit contemplated by the Settlement Agreement. In private provider-managed cases, however, because private providers were not clearly directed by DCS to document the circumstances of the contact, reviewers did accept documentation of dates of visits as contacts without accompanying case recordings documenting interaction. Had reviewers’ requirements of documentation in private provider agency cases been comparable to documentation required for DCS cases, 13 cases would be moved to the UTD category. 63 In 2005, all of the required visits occurred in 37% of the 242 cases in which children in the sample were in their most recent placement for at least eight weeks and three or more visits occurred in 68% of those cases. This year’s findings may not be directly comparable to last year’s findings because of the large number of cases in the 2005 review that were coded as UTD because of the lack of private provider documentation. For the 2006 Case File Review, private providers were contacted directly and asked to provide any additional documentation kept by their agency regarding contacts (See Appendix C). 64 The reviewers requested additional information from the appropriate DCS or private provider staff with respect to these eight cases. Four of the cases were DCS-managed cases and four were private providermanaged. Based on the supplemental documentation, the reviewers were able to better understand the circumstances of these cases. In one DCS-managed case, other DCS employees such as CPS workers and a case assistant had contact with the child during that time. In another case, upon follow-up, the region reported that a supervisor had visited the child while the case manager was on medical leave but this was not documented in TNKids. In another DCS-managed case, DCS acknowledged that visits had not occurred and did not present any further explanation. In the fourth DCS-managed case, DCS provided follow-up regarding visits during a placement that was not the most recent placement. In two of the private provider-managed cases, two brothers were placed with the same agency and other workers from that agency, including family therapists, had contact with each child. In another private provider-managed case, the child was placed at a group home and was having daily contact with house parents and other staff. (The parties may need to engage in further conversations with the private providers to clarify how the case manager contact provisions apply in private provider agency cases in which several staff interact with the children and family on a regular basis.) The remaining case was a private provider-managed case in which the child was only visited one time in the first eight weeks of placement according to the documentation provided by that provider agency and no further explanation was provided.
53

Figure 19: Case Manager Face-to-Face Contacts during First Eight Weeks in New Placement between October 1, 2005 and March 31, 2006 (n=239)
53%

15%

16%

8%

5%

3%

6 or more times 5 times

4 times

3 times

2 times

1 time

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which the child had been in the most recent out-of-home placement for at least eight weeks as of the end of the review period

The Settlement Agreement also requires that at least three of the visits during the first eight weeks a child is in a new placement take place in the child’s placement.65 This
allows the case manager both to observe the child in his or her current environment and
to assess safety and other issues in the home or facility. As shown in Figure 20, the case
file documented that at least three of these visits occurred in the child’s placement in 39% (93) of cases. This represents an improvement over last year’s findings.66 In 4% (9) of
cases, three or more visits took place but the locations of the visits were not documented.67

65 Brian A. Settlement Agreement VI.K.1-2. 66 In the 2005 Case File Review, 22% of 242 cases documented three or more visits occurring in the placement during the first eight weeks of placement. The 2006 Case File Review findings may not be directly comparable to last year’s findings because of the large number of UTDs in 2005 resulting from the lack of private provider documentation. 67 Of the nine cases in which reviewers were unable to determine the location of visits, six were managed by private provider agencies. It may be that private agency staff were not aware at that time that they were expected to document location of visits.
54

Figure 20: Location of Visits: Number of Documented Case Manager Visits Occurring at Placement Location during First
Eight Weeks in New Placement (n=238)
39%

24%

16%

18%

4%

3 visits at placement

2 visits at placement

1 visit at placement

No visits at placement

UTD location of visits

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which the child had been in the current placement at least eight weeks with the exception of one case in which the reviewer omitted the question

2. Visits After the First Eight Weeks in a New Placement

The Settlement Agreement requires less frequent visits—biweekly visits—once children have been in a placement for more than eight weeks.68 As shown in Figure 21, case
managers were better able to meet the Settlement Agreement requirements for the second
eight weeks a child was in a placement.

There were 167 children in the sample who had been in their most recent out-of-home placement for at least 16 weeks during the review period. The case file documented that in 76% (127) of cases all of the required visits between the case manager and the child occurred during the second eight weeks in that placement, representing a dramatic improvement from last year’s findings.69 There were three cases for which fewer than two visits occurred during the second eight weeks in the most recent out-of-home

68 Brian A. Settlement Agreement VI.K.1-2. 69 In the 2005 Case File Review, 44% of 183 cases documented four or more visits occurring during the second eight weeks of placement. These findings may not be directly comparable to last year’s findings because of the large number of UTDs in 2005 resulting from the lack of private provider documentation.
55

placement and the reviewers obtained supplemental documentation to better understand the circumstances of these children.70
Figure 21: Case Manager Face-to-Face Contacts during Second Eight Weeks in Placement between October 1, 2005
and March 31, 2006 (n=167)
76%

14%

4 or more times

3 times

8% 2 times

1% 1 time

1% Not at all

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which the child had been in the most recent out-of-home placement at least sixteen weeks during the review period

3. Length of Time Between Visits
Reviewers looked not only at the number of case manager-child visits per month, but also at the length of time between case manager visits. Reviewers recognized that if a child had two visits in the first week of the first month and two visits in the last week of the second month, the case manager would be considered to be visiting “twice a month”, but the child could have gone as much as eight weeks without a visit from the case manager. In order to ensure that children were being seen regularly by their case managers, reviewers collected information on whether more than 30 days ever lapsed between case manager face-to-face contacts with a child. In 21% (56) of the cases reviewed, the child went for more than thirty days on at least one occasion without a visit from his or her case manager. (See Figure 22).71

70 All three of these cases were private provider-managed cases. Two of the children were placed with the same agency, one in a foster home and one in an institution. The other child was placed in a foster home and was having monthly therapy sessions with a provider agency therapist. Both of the agencies reported that the therapist functioned as the case manager in these cases. Therapy sessions involving the child and therapist were documented in these cases and were considered by the agencies to satisfy the case managerchild contact requirement. 71 The 1% UTD in Figure 22 represents one child for whom follow-up information was not requested.
56

Figure 22: Case Manager Face-to-Face Contacts with More than Thirty Days Lapsing Between Visits (n=268)

More than 30 days did not lapse betw een visits 78%

UTD 1%
More than 30 days did lapse betw een
visits 21%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
4. Private Time With the Child
The Settlement Agreement requires that, for children two years of age and older, each visit between the case manager and the child include a private meeting between them outside of the presence of the caregiver in order to provide an opportunity for open communication with the child.72
As shown in Figure 23, the case file documented private time between the case manager and the child during at least some of the visits in 87% (178) of the 205 cases of children two years or older. This is a significant improvement over last year’s findings.73

72 Brian A. Settlement Agreement VI.K.1. 73 In the 2005 Case File Review, the case file documented private time between the case manager and the child during at least some of the visits in 74% of 208 cases.
57

Figure 23: Case Manager Face-to-Face Contacts Included Time with Child Outside the Presence of Caregiver (n=205)

Some of the time 78%

Not at all 13%
All of the time 9%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes all cases of children under two years old and two cases of non-verbal children with severe disabilities
Sometimes reviewers found specific case recordings stating that the visit included private time with the child; other times it was evident from the circumstances of the visit (such as a visit at school or a visit while transporting a child to an appointment) that the case manager spent time with the child outside the presence of the caregiver. The data show that a significant majority of case managers are documenting private time with the child during at least some of the visits, although few documented such private time during every visit. Those cases in which the Case File Review found incomplete compliance with this particular requirement of the Settlement Agreement may be to some extent an indication of a documentation problem rather than a case practice issue.
5. Monthly DCS Case Manager Contact With Children in Private Provider-Managed Cases
In private provider-managed cases, not only must the private provider case manager visit with the same frequency as DCS case managers in DCS-managed cases, but the DCS case manager must also visit children in those private provider-managed placements. The Settlement Agreement requires a monthly face-to-face visit between the DCS case manager and child at the private provider-managed placement.74
The DCS case manager visited the child at least one time per month in 89% (80) of the 90 cases in which the child was in a private provider placement for at least one month as of
74 Brian A. Settlement Agreement VI.K.2.b.
58

the end of the review period. (See Figure 24). This represents an improvement over last year’s findings.75
Figure 24: DCS Case Manager Had Face-to-Face Contact with Child in Private Provider Placement at Least One Time per Month (n=90)

No

Yes

11%

89%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children whose most recent placement was a private provider placement and the child was in that placement for at least one month as of the end of the review period
In 82% (60) of cases assessed, children in private provider-managed cases were visited by their DCS case manager at their placement location at least one time during the review period.76 In 14 (19%) of the cases, the children were not seen in their placement at all by their DCS case manager during the review period. (See Figure 25).

75 In the 2005 Case File Review, the DCS case manager visited the child at least one time per month in 67% of 79 cases. 76 The decision to collect this data was made after completion of the first region reviewed. Figure 25 therefore reflects data collected for 11 of 12 regions.
59

Figure 25: Location of Visits: DCS Case Manager's Face-to-Face Visits with Child in Private Provider Placement Occurring at Placement Location (n=74)
64%

18%

19%

All documented visits took Some documented visits No documented visits took place in the placement took place in the placement place in the placement
Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children in a private provider placement for at least one month as of the end of the review period, excluding 16 cases not assessed for this information from the first region reviewed
6. DCS Case Manager/Private Provider Case Manager Joint Visits
In private provider-managed cases, it is important that the DCS case manager and private provider case manager visit jointly with the child in his or her placement on a regular basis so that they are able to discuss the case with each other, the foster parents/facility staff, and the child. For this reason, the Settlement Agreement requires that the private provider case manager in these cases accompany the DCS worker to his or her monthly visit with the child at least once every three months.77
The case file documented joint quarterly visits in 54% (44) of the 81 cases of children who were in a private provider placement for at least three months during the review period. (See Figure 26). This represents a marked improvement over last year’s findings.78

77 Brian A. Settlement Agreement VI.K.2.b. 78 In the 2005 Case File Review, joint quarterly visits were documented in 29% of 68 cases.
60

Figure 26: DCS and Private Provider Case Managers Visited Jointly with Child at Least Once Every Three Months (n=81)

Yes

No

54%

46%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children in a private provider placement for at least three months during the review period.
The Settlement Agreement requires that these joint visits occur at the child’s placement.79 In 51% (24) of cases assessed for joint visits, children in private provider-managed cases were jointly visited by their DCS and private provider case managers at their placement location at least one time during the review period.80 (See Figure 27).

79 Brian A. Settlement Agreement VI.K.2.b. 80 The decision to collect this data was made after completion of the first region reviewed. Figure 27 therefore reflects data collected for 11 of 12 regions. Information was collected on location of all visits, some of which may have exceeded the required visits.
61

Figure 27: Location of Visits: DCS and Private Provider Case Manager Joint Visits Occurring at Placement Location (n=47)

36%

45%

15% 4%

All documented Some documented No documented

visits took place in visits took place in visits took place in

the placement

the placement

the placment

UTD location of vis its

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children in a private provider placement for at least three months during the review period in which joint quarterly visits occurred, excluding 17 cases not assessed for this information from the first region reviewed81

D. Trial Home Visit Contacts
It is not uncommon for children to go on a “trial home visit” for up to 90 days before being discharged from state custody. The Settlement Agreement requires that during any trial home visit, the child’s case manager visit the child in person at least three times in the first 30 days and two times per month for the remaining 60 days.82
In this year’s sample, 22 children were on a trial home visit for at least 30 days during the review period. Seven of those children were on a trial home visit for at least 90 days. Of the 22 children on a trial home visit for at least 30 days during the review period, 14 were visited three times during the first 30 days of the trial home visit and eight were not. All eight of the children who were not visited at least three times were visited two times.83

81 The n for Figure 27 is greater than the number of “Yes” answers for Figure 26 because in some cases, all joint quarterly visits did not occur, although some did, and location of visits was collected for the visits that did occur. 82 Brian A. Settlement Agreement VII.L.4. 83 Based on follow-up, reviewers determined that the Department often counted the court hearing at which the child was placed on the trial home visit as the first case manager visit and therefore reported that three visits did take place. In these cases, the case recordings for the court hearing date were read by reviewers and none documented specific relevant interactions after court. This was not considered to be a visit in the way that the Settlement Agreement intended and therefore these court contacts were not included as visits in this report.
62

Of the seven children on a trial home visit for at least 90 days during the review period, six (all but one) were visited two times per month after the initial 30 days.84
E. Case Manager-Family of Origin Visits
1. DCS Case Manager Visits with Family of Origin Although the Settlement Agreement does not establish specific requirements for DCS case manager visits with parents, DCS Policy states that face-to-face visits must take place no less than once each month.85
Of the 253 cases in the sample for which, under DCS policy, face-to-face contact between the family of origin and the DCS case manager would be expected, 59% (149) of cases documented visits occurring at least once per month, an improvement from last year’s case review findings.86 Thirty-six percent (92) of cases documented visits occurring less than monthly and 5% (12) of the cases did not document any visits during the review period.87 (See Figure 28).
Figure 28: Frequency of DCS Case Manager Visits with Family of Origin (n=253)

At least one time per month
59%

Less than monthly
36%
Not at all 5%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes cases in which parental rights have been terminated, the family of origin is unwilling to have contact with the DCS case manager, or their whereabouts are unknown
84 The one child who was not visited two times per month was visited twice in the first month and only one time in the second month, and was therefore visited three rather than four times during that two month period. 85 DCS Policy 16.38 BA 86 In the 2005 Case File Review, case manager-family of origin visits were documented as having occurred at least one time per month in 53% of 242 cases reviewed for that issue. 87 Reviewers counted documented face-to-face contacts between DCS case managers and family of origin if case recordings illustrated interaction between the case manager and the family. Reviewers used the “Not Applicable” option if parental rights were terminated, or if the parents refused or were unable to be contacted and reviewers found documented efforts by the case manager to locate or engage the parents.
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The Department was asked to provide supplemental information in all of the cases in which, according to the documentation in the file, visits between the DCS case manager and the family of origin were occurring less than monthly or not at all. The reviewers sought to determine through this follow-up request whether any of the case managers had in fact been visiting more frequently with the family than was documented in the file, or whether there were some special circumstances that explained the lack of contact between the case manager and the family. In a number of cases the Department provided clear justification for the missed visits (parent incarcerated in another state; parent unable to communicate after suffering a stroke; specific actions taken to try to locate a parent, without success); in others the response simply stated that the parent could not be located, failed to show up for a scheduled meeting, or was uncooperative, but did not provide any specific information about efforts made by the case manager to locate, connect with, or engage the parent. Figure 29 below presents data regarding DCS case manager visits with family of origin after adjusting for any cases in which the Department’s supplemental documentation was construed as an assertion that the visits between the case manager and the family of origin would not be reasonably appropriate/expected under the circumstances of the case. Of the 227 cases assessed for face-to-face contact between the family of origin and the DCS case manager, 66% (149) documented visits occurring at least one time per month. Thirty-one percent (72) documented visits occurring less than monthly and 3% (6) did not document any visits during the review period. This represents an improvement over last year’s findings.88
88 See Footnote 86.
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Figure 29: Frequency of DCS Case Manager Visits with Family Of Origin (Adjusted) (n=227)

At least one time per month
66%

Less than monthly
31%
Not at all 3%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes cases in which parental rights have been terminated, the family of origin is unwilling to have contact with the DCS case manager, or their whereabouts are unknown
2. Private Provider Case Manager Visits with Family of Origin
The Settlement Agreement does not specifically require private provider case managers to have regular contacts with the family of origin. Nevertheless, private provider case managers are required by the Department to have no less than two face-to-face contacts per month with the family in all cases in which the child is in out-of-home placement and the permanency plan has identified reunification with family as a permanency goal.89 Reviewers therefore collected information about private provider case manager contacts with family of origin.90 There were 87 cases of children who were placed in a private provider placement for at least one month during the review period in which visits with the family of origin would be expected. Of those 87 cases, 31% (27) documented visits occurring at least one time per month. (See Figure 30).

89 Private Provider Manual Chapter 1, Section III.H.11 90 The 2006 Case File Review did not collect information on permanency goals but it was assumed for purposes of this question that all of children had a goal of reunification because the sample was limited to recent entrants into care and the review was for their first six months in care.
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Figure 30: Frequency of Private Provider Case Manager Visits with Family of Origin (n=87)

31%

32%

22% 15%

At least one time Less than monthly per month

Not at all

UTD, incomplete documentation of
family of origin contact by provider
agencies

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n includes all children placed in a private provider placement for at least one month during the review period and excludes cases in which parental rights have been terminated, the family of origin is unwilling to have contact with the case manager, or their whereabouts were unknown, as well as one reviewer omission

F. Case Manager-Foster Parent/Facility Staff Visits
Although the Settlement Agreement does not specifically address visits between the DCS case manager and foster parent or facility staff, DCS Policy states that face-to-face visits must take place no less than once each month.91
Of the 265 cases assessed for face-to-face contact between the foster parent or facility staff and the DCS case manager, 59% (156) documented visits occurring at least once per month.92 Thirty-six percent (95) documented visits occurring less than monthly and 14 cases (5%) did not document any visits during the review period. (See Figure 31).

91 DCS Policy 16.38 BA 92 In the 2005 Case File Review, face-to-face contact between the DCS case manager and the foster parent or facility staff at least one time per month was documented in 51% of the 264 cases reviewed for that issue.
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Figure 31: Frequency of DCS Case Manager Visits with Foster Parents or Facility Staff (n=265)

At least one time per month
59%

Less than monthly
36%
Not at all 5%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes cases in which the child is placed with the family of origin
The Settlement Agreement does not contain requirements for private provider case manager visits with foster parent or facility staff. Nevertheless, private provider case managers are required by the Department to provide no less than one face-to-face contact per month with the foster parent.93 Reviewers therefore collected information about private provider case manager contacts with foster parents or facility staff. There were 87 cases of children who were placed in a private provider placement for at least one month during the review period in which visits with the foster parent or facility staff would be expected (see source description under Figure 32). Of these 87 cases assessed for visits, 64% (56) documented visits occurring at least one time per month. (See Figure 32).94

93 Private Provider Manual Chapter 1, Section III.G.8.f 94 The UTDs in Figure 32 represent 11 children for which incomplete documentation of foster parent contact by provider agencies was documented and/or provided and one child for which follow-up was not requested.
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Figure 32: Frequency of Private Provider Case Manager Visits with Foster Parents or Facility Staff (n=87)
64%

15%

14%

7%

At least one time Less than monthly

Not at all

UTD

per month

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n includes all children placed in a private provider placement for at least one month during the review period, excluding nine cases in which documentation illustrated that at a residential facility, the private provider case manager was the facility staff and therefore visits would not be assessed

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III. Child and Family Team Meetings
The Child and Family Team process is the core of the Department’s Practice Model. The Child and Family Team Meeting is the forum for key case decision-making and problem solving, including making decisions about placement, service provision, and permanency goals, developing the permanency plan, and addressing problems or concerns that arise during the life of the case.
Consistent with the terms of the Settlement Agreement, Child and Family Team Meetings are to be scheduled at certain intervals during a child’s time in state custody.
Reviewers collected information regarding meetings that took place during the review period for those children for whom a CFTM would have been expected. Because the review was limited to an examination of the first three to six months in care, reviewers focused on the two meetings that every child in the sample should have experienced: the Initial Child and Family Team Meeting which should occur either immediately prior to or no later than seven working days after entry into custody, and the Initial Permanency Plan Child and Family Team Meeting that is to occur within 15 working days of custody to establish permanency goals and develop the permanency plan. 95
In addition to determining whether meetings were held, reviewers gathered information on whether children who were 12 years old or older attended the CFTMs in their cases and gathered information on whether the permanency plan developed at the CFTM was signed by the parent, and, in the case of older children, by the child.
A. Initial Child and Family Team Meeting (7-Day Meeting)
The Settlement Agreement requires that a meeting to initiate the planning process take place with the parents or caregivers of children entering custody and the assigned DCS case manager “as soon as possible…and within seven working days of the child entering state custody.”96
Of the 268 children expected to have an Initial Child and Family Team Meeting between October 1, 2005 and March 31, 2006, over three-quarters (78% or 208) had a meeting
95 Although for the purposes of this review these meetings are referred to as “Child and Family Team Meetings” (CFTMs), the questions regarding content of the meetings were based on the requirements of the Settlement Agreement for “7-Day” and “15-Day” meetings. It is not possible from a case file review to determine whether the meetings actually reflect the key quality characteristics of a Child and Family Team Meeting as it is envisioned by the DCS Practice Model and by DCS policy. 96 Brian A. Settlement Agreement VII.B, VII.B.1.
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within seven working days of their entry into custody.97 An additional 15% (41) of children had the required meeting, but the meeting occurred later than seven working days after entry into custody. In 19 cases (7%), there was no documentation that the required meeting occurred. This is comparable to last year’s Case File Review findings.98 (See Figure 33).
Of the 19 cases for which no seven-day meeting was held in the judgment of the reviewers, the Department concurred with the reviewers’ judgment in seven cases. For two of those seven cases, the Department offered explanations of why the meeting did not occur. In one case, the child was on runaway and the parents refused to participate. In the other case, the Department asserted that the parents refused to participate, but offered no explanation as to why a meeting was not held with the teenage child.
Of the remaining 12 cases, reviewers determined that the meeting did not qualify as a CFTM. In five of those cases, neither the parent, child, other family members nor a representative of the parent or child was in attendance at the meeting. The meeting consisted only of DCS staff. In five other cases, meetings were “convened” on the spot at court, either in the minutes immediately before or following the hearing without prior notification or preparation. In one case, the meeting was “convened” when the mother was present for a drug test, was not prepared to meet, and no other family supports were present. In one case, a new case manager indicated that he had located a staffing summary that had not been entered in TNKids; however, the information was not sufficient to allow the reviewer to consider this to be a Child and Family Team Meeting.
97 The Department was asked to provide responses regarding the occurrence of a 7-day meeting for 34 children whose case file did not document whether or not a meeting occurred. The purpose of this followup was to determine whether a 7-day meeting occurred, within what timeframe, and if the meeting was considered to be a CFTM. Reviewers only counted a CFTM when documentation clearly illustrated interaction between the DCS staff and member(s) of the Child and Family Team. Reviewers determined that a 7-day meeting did occur within the applicable timeframe in 13 cases, a meeting occurred in two additional cases outside of the 7-day timeframe; and in 19 cases, either no 7-day meeting occurred or a meeting occurred that was not considered by the reviewers to qualify as a CFTM. 98 The 2005 Case File Review reported CFTMs occurred within seven working days for 75% of the children in the sample, CFTMs occurred outside of seven working days for 16% of children, and no 7-day CFTM occurred for 9% of children.
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Figure 33: Occurrence of Initial Child and Family Team Meeting
(n=268)

CFTM occurred within 7 days 78%

CFTM occurred, but not within 7
days 15%
No CFTM occurred
7%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS

B. Permanency Planning Child and Family Team Meeting (15-Day Meeting)
The Settlement Agreement stipulates that a meeting to discuss and begin development of a permanency plan for a child must occur within 15 working days of the child’s entry into custody.99 At the time of the Permanency Planning Child and Family Team Meeting, the Child and Family Team should be established and the family, child, and key people involved in the care, treatment, or support of the child and/or family (extended family and kin; teachers or school personnel; and other individuals determined by the child or family as significant participants) should be present. Team decision-making is crucial to effective permanency planning. Older children should be present and actively participate in their own planning whenever possible.
A meeting occurred within 15 working days of the child’s entry into custody in 75% (201) of the 268 cases reviewed for a Permanency Planning Child and Family Team Meeting. In an additional 25% (66) of the cases, the meeting occurred, but not within 15 working days of custody.100
Follow-up information was requested from the Department for one case in which reviewers found no evidence that a meeting occurred. The parents of that child refused to attend the Child and Family Team Meeting and neither the child, GAL, nor any persons other than DCS staff were present. Because only DCS staff attended, reviewers did not consider this meeting to qualify as a CFTM. (See Figure 34).

99 Brian A. Settlement Agreement VII.C. 100 In the 2005 Case File Review, 67% of the children in the sample had a permanency planning meeting within 15 working days, 32% of children had a meeting occur outside of 15 working days, and one percent of children did not have a meeting.
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Figure 34: Occurrence of Permanency Planning Child and Family Team Meeting (n=268)

CFTM occurred within 15
working days 75%

CFTM occurred, but not within 15 working days
25%
No CFTM occurred
0%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS

C. Presence of Children Twelve Years and Older at Their CFTMs
DCS has recognized the critical importance of older children and youth being actively engaged in the planning process. Their feelings, perspectives, and preferences, while not necessarily controlling, should inform the decision-making and case planning and generally be respected and honored when they can be safely accommodated. Older youth should be encouraged and empowered to assume more responsibility for and control over the direction of their lives. The Settlement Agreement therefore requires that children 12 years or older participate in their Child and Family Team Meeting unless it is contrary to the child’s best interest and is documented as such in the child’s file.101
There were 129 children in the sample who were age 12 and older when they entered custody. An initial CFTM was held for 119 of those children and 82% (97) of those children attended the meeting. This is a significant improvement over last year’s findings.102 (See Figure 35).

101 Brian A. Settlement Agreement VII.C. 102 The 2005 Case File Review reported that of the 100 children age 12 or older who had an Initial Child and Family Team Meeting, 65% attended the meeting.
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Figure 35: Presence of Child (Age 12 or Older) at Initial Child and Family Team Meeting (n=119)

Child present at CFTM 82%

Child not present at
CFTM 18%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS n equals all cases of children age 12 or older who had an Initial Child and Family Team Meeting
All 130 children in the sample who were age 12 and older at the time of the 15-day meeting had a permanency planning meeting. Of the 130 children age 12 or older who had a Permanency Planning Child and Family Team Meeting, 86% (112) attended these meetings.103 (See Figure 36).
Figure 36: Presence of Child (age 12 and older) at Permanency Planning Child and Family Meeting (n=130)

Yes

No

86%

14%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS n equals all cases of children age 12 or older who had a Permanency Plan Child and Family Team Meeting
For the 28 children who did not attend either or both of the Child and Family Team Meetings, additional information was requested from the Department to help the
103 This includes follow-up gathered for 22 children whose case files did not document child’s attendance at the Permanency Planning meeting. Based on supplemental documentation, reviewers determined that four of those 22 children actually attended their permanency planning meeting. The 2005 Case File Review reported 84% of 111 children attended the permanency planning meeting and 17% of the children did not attend.
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reviewers determine the reason for non-attendance. Among the reasons given by the Department for non-attendance by the child at either or both of the CFTMs:
• Five children had severe mental health issues that the Department felt prevented them from meaningfully participating in the CFTM.
• Three children were the subjects of no-contact orders.
• Three did not want to attend the CFTM because their parents would be present (one child was uncomfortable attending the CFTM and was later briefed on the happenings of the meeting; one child was angry with his mother and did not want to see her; and one child did not want to see her father who was involved in sexual abuse).
• In five cases the child did not attend because the meeting was scheduled during the school day and the child “could not miss school.”
• One child was visiting relatives out of the state.
• One child did not attend as a result of a mistaken belief by DCS staff that a 13year-old child is too young to attend.
• In two cases, there was poor documentation and DCS staff could not recall the reason for the child not participating in the CFTM.
• In one case, the Department reported that case manager negligence was the reason for non-participation.
• One child was placed in detention and not able to participate in the CFTM.
• In another case, DCS staff was not able to arrange for the child to participate at the same time as her mother due to scheduling conflicts.
• One child’s grandmother was expected to bring a child to the CFTM but failed to do so.
• The remaining four children did not attend and no reason was given for nonattendance.
Reviewers were concerned that CFTMs involving older youth had been scheduled during the school day, thus forcing an older child to choose between school attendance and attending the CFTM. Reviewers also questioned whether there should be a process for ensuring participation of older children in their CFTM when no-contact orders or other circumstances make a single CFTM with both parents and the child present inappropriate. Finally, it was not clear whether an effort was made to allow the child who was placed out of state to participate by telephone. With respect to the four children whose mental
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health issues were the reason for non-attendance, the reviewers made no independent determination of what accommodations might have been appropriate to allow their participation in their CFTMs.
D. Signing of Permanency Plan
The Practice Model describes a case planning process that engages family members so that their voices are heard and their contributions reflected in the decision-making. The Settlement Agreement provides that parents should be given the opportunity to discuss and sign the completed permanency plan within 30 calendar days of the date that their child entered custody.104 The plan should be signed at the Permanency Planning Child and Family Team Meeting whenever possible. Older children are also expected to sign and receive copies of their permanency plans.
The child’s permanency plan was signed by at least one parent within 30 days of entry into custody in 67% (176) of 262 cases.105 (See Figure 37).
Figure 37: Permanency Plan Signed by Parent(s) within 30 Days of Custody Date
(n=262)

Yes

No

67%

33%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n excludes three cases in which the parent’s rights were terminated or whereabouts were unknown

104 Brian A. Settlement Agreement VII.C.2. 105 The 2005 Case File Review reported 70% of 276 parents signed the permanency plan within 30 days of custody.
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Of the 130 children age 12 years and older, 66% (86) signed their permanency plan within 30 days of the date they entered custody.106 (See Figure 38).
Figure 38: Permanency Plan Signed by Child (Age 12 and Older) within 30 Days of Custody Date (n=130)

Yes

No

66%

34%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases of children age 12 or older who had a Permanency Plan Child and Family Team Meeting

106 The 2005 Case File Review did not collect information about whether or not the child signed the permanency plan within 30 days.
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IV. Services and Well-Being
A. Health
The Settlement Agreement states that each child should have an assessment using a standardized protocol within 30 days of entering custody.107 The assessments are expected to include a medical evaluation and, if it is indicated, a psychological evaluation.
Based on documentation in the file, reviewers found that 85% (228) of the 268 children in the review sample received a medical assessment within 30 days of entering custody, and an additional 12% (33) received a medical assessment, but not within 30 days of entering custody. Seven (3%) of the files did not contain documentation that any medical assessment occurred. This is a slight improvement over last year’s Case File Review finding.108
Reviewers requested additional information from the Department for the seven children whose case files did not document a medical assessment. Based on the supplemental documentation received from the Department, reviewers concluded that three of these children received medical assessments within 30 days of entering custody, two received medical assessments during the review period (but not within 30 days of entering custody), and two received medical assessments after the review period—several months after they entered custody. Based on the combination of case file and supplemental documentation, reviewers concluded that 86% (231) of the children in the review sample received an assessment within 30 days of entering custody. (See Figure 39).

Figure 39: Medical Assessment Completed upon Entry into Custody (n=268)

Within 30 days 86%

Not w ithin 30 days 14%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
107 Brian A. Settlement Agreement VI.D. 108 The 2005 Case File Review found that children received a medical assessment within 30 days of entering custody in 81% of 273 cases, and the case file contained no documentation that the child received an assessment in 5% of cases.
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In an effort to determine if children received further care for health care needs identified either in the medical assessment or in other documents or notes in the case file, reviewers looked for documentation that timely evaluation or treatment services were provided to meet those needs. Of the 214 case files indicating that health care services were needed, 64% (137) contained documentation that each of the identified health care needs of the child was appropriately addressed.109 (See Figure 40).
Figure 40: Case File Documents that Child Received Needed Medical Evaluation and/or
Treatment for Identified Problems (n=214)

No

Yes

36%

64%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children whose cases indicated that follow-up health care was necessary
Follow-up information was requested from the Department for the 77 cases (36%) for which there were medical needs identified but for which documentation of provision of services to meet one or more of the identified needs was lacking in the case file. This follow-up had two purposes. The first was to distinguish those cases in which services were provided but not documented in the case file from those cases in which the lack of documentation reflected the failure to address a particular medical need. The second was to alert the Department to any cases in which children’s health needs were not being met so that corrective action could be taken.
Based on the supplemental documentation provided by the Department, reviewers determined that the children’s health needs were met in 45 of the 77 cases. In 43 of the 45 cases, the children’s health needs had already been addressed but the documentation either had not been in the case file or reviewers had been unable to find it. (Services had been provided during the review period in 28 cases, and services were provided after the review period but prior to receipt of the follow-up request in 15 cases.) In two additional cases, the supplemental information indicated that services had been provided as a result of the concerns raised by reviewers in the follow-up request.
109 With the exception of case recordings and certain tabs in TNKids, reviewers referred only to a child’s hard case file for the review and did not access the Services and Appeals Tracking (SAT) web-based application to determine if the identified follow-up services had been entered into the application. This electronic documentation provides a tickler system for making sure appointments are arranged and services are accessed, thus completing the Screening-Diagnosis-Treatment loop.
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As indicated in Figure 41 below, based on the combination of case file and supplemental documentation, reviewers concluded that the child received needed services for all identified health problems in 182 cases (85%), irrespective of whether the provision of those services was documented in the case file at the time of the review and irrespective of whether the services were provided during or after the review period. This represents a significant increase compared to the 2005 Case File Review results.110 Reviewers concluded that the child did not receive needed services for all identified health needs in 25 cases (12%). For seven cases (3%), reviewers were unable to determine whether the child needed and/or received services because the supplemental documentation was not clear or detailed enough to determine whether the reviewers’ concerns were valid and/or to provide assurance that the identified concerns had been fully addressed.
Figure 41: Child Received Needed Medical Evaluation and/or Treatment for Identified Problems (Adjusted) (n=214)

Yes 85%

No 12%
UTD 3%

Sources: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children whose cases indicated that follow-up health care was necessary
In 13 of the 25 cases in which the child’s identified needs were not met, supplemental documentation indicated that some, but not all, of the reviewer’s concerns had been addressed. For example, the reviewer could not find documentation in one case that the child had received follow-up for the conditions referred at the initial EPSD&T: failed hearing test, problems with tubes in ears, speech problems, and asthma. The Department provided supplemental information indicating that all of these concerns had been addressed except for the child’s asthma. For 12 of the 13 cases, these steps had been taken prior to this follow-up, and in the other case, the supplemental documentation indicated that the needed tests had been completed and a follow-up appointment had been made after receiving the reviewer’s concerns.
110 The 2005 Case File Review found that the case file documented children’s health care needs were appropriately addressed in 73% of the 200 cases in which follow-up health care was indicated. As noted in the discussion on pages 27-28, there was no supplemental information included in the 2005 Case File Review report. It may be that last year’s findings would have been more positive had a similar follow-up procedure been followed in that review.
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In nine of the 25 cases, although the Department has taken steps to address the identified health needs, some of those needs remain unmet as of the date of this report. Three of the nine children had already exited custody, and the Department has contacted (or attempted to contact) the children’s guardians to make them aware of the health needs requiring further attention. In three other cases, services had not been provided either because of problems with the contract provider (two cases) or because of a communication breakdown after the case was transferred (one case), but the necessary appointments have been made since receiving the follow-up request. In another case, the Department appropriately indicated that the case manager would continue to monitor the situation of a 16-year-old child who is refusing a needed medical exam. In another case, the reviewer was concerned that there was no information about prenatal care in the file. The Department provided documentation about two prenatal visits (one in January and the other three weeks before the youth’s baby was born in May), but this concern was not considered fully addressed because adequate prenatal care would require more than two visits. In the ninth case, the child’s next dental appointment is not scheduled until December, even though the physician at her June EPSD&T noted that she needs to see a dentist as soon as possible.111
The Department has not taken steps to address the health needs of one child who did not receive needed services prior to running away in May 2006 and has not received the services since being apprehended in October 2006. Supplemental information provided by the Department did not address the concerns raised by the reviewer in two of the 25 cases. Based on the information provided through the follow-up, a list of children whose health needs remain unaddressed has been sent to the Department, and the Department has forwarded those cases for further follow-up through the CQI process in the regions.
111 There was also a problem with the timeliness of service provision in some cases of children whose health needs had been met. Timeliness was a problem in the majority of the 17 cases of children who did not receive follow-up for concerns until after the review period. It was also a problem in some cases of children whose needs were met during the review period. In one particularly egregious instance, the initial EPSD&T in early November referred the child for follow-up of swollen tonsils and a sore throat, but the child did not see a doctor for these concerns until February, when she was diagnosed with an upper respiratory infection and was prescribed antibiotics.
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B. Mental Health
It is not possible from a case file review to make sufficiently accurate judgments about whether, and what types of, psychological assessments and/or examinations are appropriate and necessary for children in custody.112 The TAC therefore limited questions in this Case File Review to whether there was documentation in the file that a mental health need had been identified and, if it had been, whether there was documentation that the need had been/was being addressed.113
Of the 171 children reviewers identified as having mental health needs in the 2006 Case File Review, reviewers found documentation in 61% (104) of the cases that the children had received or were receiving treatment during the review period. (See Figure 42).
Figure 42: Case File Documents that Child Received Needed Mental Health Care for
Identified Problems (n=171)

Yes 61%

No 39%

Source: Brian A. Case File Review, October 1, 2005-March 31, 2006 n equals all children whose cases indicated mental health needs
Reviewers requested follow-up information from the Department for the 67 cases (39%) in which mental health needs had been identified from the case file but for which there was no documentation in the file of provision of services to meet one or more of those identified needs. This follow-up had the same two purposes as the follow-up conducted
112 In the past, reviewers have made assumptions that in the absence of an indication to the contrary, all except the youngest children in custody should have some form of psychological assessment if information in the case file indicated a need for such assessment. In addition, reviewers have equated psychological assessment with a formal psychological evaluation. The TAC felt that determining whether a child should have a psychological assessment, including a formal psychological evaluation, is something that requires a qualitative review. The Quality Service Review (QSR) process that DCS has begun to implement, as well as targeted case reviews that involve a combination of file review and interviews, are more suited to examining the extent to which DCS is providing timely psychological assessments for those children who need them. 113 There were 11 cases in which children were receiving mental health services for identified problems, but reviewers had significant questions about the appropriateness, quality, and effectiveness of the services being provided as well as the depth and accuracy of assessment information being used by the team. Department staff were informed of the reviewers’ concerns; however, because reviewers did not have sufficient information on which to make judgments about the quality of services provided, these children were considered for purposes of this report as having received needed mental health care.
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for medical concerns. The first was to distinguish those cases in which services were provided but not documented in the case file from those cases in which the lack of documentation reflected the failure to address a particular mental health need. The second was to alert the Department to any cases in which children’s mental health needs were not being met so that corrective action could be taken.
Based on the supplemental documentation provided by the Department, reviewers determined that the children’s mental health needs were met in 60 of the 67 cases. In 59 of the 60 cases, the children’s mental health needs had been addressed but the documentation was either not in the case files or reviewers had been unable to find it. (Services had been provided during the review period in 24 of those 59 cases, and in the remaining 35 cases, services were provided after the review period but prior to receipt of this follow-up.)114 In one additional case, supplemental documentation indicated that services had been provided as a result of the concerns raised by reviewers in the followup.
As indicated in Figure 43 below, based on the combination of case file and supplemental documentation, reviewers concluded that the child received needed services for all identified mental health problems in 164 cases (96%), irrespective of whether the provision of those services was documented in the case file at the time of the review and irrespective of whether the services were provided during or after the review period. This represents a significant increase compared to the 2005 Case File Review results.115
114 Timeliness of services is also a problem in the provision of mental health services, seemingly even more so than with health services. Many children did not begin receiving mental health services until after the review period, and the Department’s responses in several cases indicated that there was difficulty in obtaining services in a timely manner. 115 The 2005 Case File Review found that children received needed mental health care in 67% of the 140 cases of children with identified mental health needs. As noted in the discussion on pages 27-28, there was no supplemental information included in the 2005 Case File Review report. It may be that last year’s findings would have been more positive had a similar follow-up procedure been followed in that review, and that the degree of improvement from last year to this year would therefore have been less.
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Figure 43: Child Received Needed Mental Health Care for Identified Problems (Adjusted)
(n=171)

Yes

No

96%

4%

Sources: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all children whose cases indicated that follow-up mental health care was necessary
Reviewers concluded that the child did not receive needed services for all identified mental health needs in seven cases (4%). With respect to four of these cases, the Department agreed that needed mental health services had not been provided: in one case, the child was on the run frequently; in the second case, the child was released from custody before services were provided; in the third case, the child’s original referral for counseling was denied and no further effort was made to provide the service before the child left custody; and in the fourth case, there had been no contact with the child since June 2006 because of confusion around case assignment, and mental health services had therefore not been provided.
With respect to the three remaining cases for which reviewers found that the children’s mental health needs remain unmet as of the date of this report, the Department has taken steps to address those needs. In one case, the reviewer had been concerned that counseling had not yet been set up for the family and was uncertain whether the child was receiving the “intensive” counseling the judge recommended. Supplemental documentation indicated that family counseling is now in place, but it did not indicate whether the child’s counseling is considered to be “intensive.” In the two other cases, the Department described efforts to encourage the youths to receive mental health services, but the youths continue to refuse the services and based on their age, have the right to do so. Based on the information provided through the follow-up, a list of children whose mental health needs remain unaddressed has been sent to the Department, and the Department has forwarded those cases for further follow-up through the CQI process in the regions.

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C. Psychotropic Medications
1. Documentation of Children Taking Psychotropic Medications
Reviewers found that 21% (57) of the 268 case files reviewed contained documentation that the child was receiving psychotropic medication at some point during the review period.116 (See Figure 44).
Figure 44: Child was Administered Pyschotropic Medication between October 1, 2005 and March 31, 2006 (n=268)

No

Yes

79%

21%

Sources: Brian A. Case File Review, October 1, 2005 - March 31, 2006
Figure 45 below divides by age group those children who received psychotropic medications during the review period and shows what percentage of that age group those children represent. None of the children age zero to three received psychotropic medications. With respect to the remaining age groups, three percent (1) of 30 children age four to six, 32% (6) of 19 children age seven to nine, 37% (11) of 30 children age 10 to 12, and 33% (34) of 120 children age 13 to 18 were administered psychotropic medication during the review period. Because of the relatively small numbers of children involved, comparison with the 2005 Case File Review age breakdown is of limited value.117

116 The 2005 Case File Review found that 17% of children were administered psychotropic medications during the review period in the 276 cases reviewed. A case file review is unable to provide information about the appropriateness of the administration of psychotropic medication. While reviewers can identify whether children are on psychotropic medications and whether consents were obtained, they cannot make qualitative judgments about the appropriateness of the administration of psychotropic medication in a particular case. 117 The 2005 Case File Review found that none of the children age zero to three, 9% (3) of 34 children age four to six, 3% (1) of 29 children age seven to nine, 24% (8) of 33 children age 10 to 12, and 34% (34) of 99 children age 13 to 17 were administered psychotropic medication during the review period.
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Figure 45: Percent of Children in Each Age Range Administered Psychotropic Medication

32%

37%

33%

0% 0-3 (n=69)

3% 4-6 (n=30)

7-9 (n=19)

10-12 (n=30) 13-18 (n=120)

Source: Brian A. Case File Review, October 1, 2005-March 31, 2006 n for each column equals all cases of children in each age group in the review sample
Figure 46 below compares the percentages of children in the age groups between seven and 18 who were administered psychotropic medication during the review period to the percentages of children in those age groups who were not administered psychotropic medication.118
Figure 46: Children Age 7 to 18 by Administration of Psychotropic Medication (n=169)

No meds (13-18)
47%

Meds (7-9) 4% No meds (7-9) 8%
Meds (10-12) 7%
No meds (10-12)
11%

Meds (13-18) 23%
Source: Brian A. Case File Review, October 1, 2005 - March 31, 2006 n equals all children age seven to 18 in the review sample
118 Children under seven were excluded from this analysis because all children who were administered psychotropic medication during the review period were seven years or older except for one child who turned seven shortly after the review period.
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2. Documentation of Informed Consent
The Settlement Agreement states that when possible, parental consent should be obtained for the use of medically necessary psychotropic medication for children in custody. This reflects the Department’s recognition that parental involvement in decisions that affect the child while the child is in foster care helps maintain attachment and encourages responsible parenting. In the event that a parent is not available to provide consent, the regional health unit nurse is required to review and, if appropriate, consent to medically necessary medication.119 Children 16 and older are expected to consent to their own medication.120
In the 2006 review, 49% (28) of the 57 case files of children taking psychotropic medications during the review period contained documentation of informed consent for each medication, representing a decrease from the 2005 finding.121 Figure 47 below displays the percentage of cases containing each type of consent. Many case files contained more than one type of consent for each medication. In those cases, the preferred consent type was counted for that child. For example, a 16-year-old child’s consent would be counted over the parent’s consent if both had consented to the medication. Similarly, the parent’s consent would be counted over the nurse’s consent if both consents were in the file.

Figure 47: Case File Documents Consent for

Administration of Psychotropic Medications

(n=57)

Parental

Child's (16 or

consent

older) consent

obtained

obtained

26%

12%

No consent 51%

Health Unit Nurse consent
obtained 11%

Source: Brian A. Case File Review, October 1, 2005 - March 31, 2006 n equals all children documented as receiving psychotropic medication
In order to determine whether consents had been obtained that were not in the case files, the Department was asked to verify the Case File Review findings regarding informed
119 Brian A. Settlement Agreement VI.F. 120 DCS Policy 20.18, DCS Policy 20.24, and Tennessee Code Annotated 33-8-202. 121 The 2005 Case File Review found that 60% of the 46 case files of children taking psychotropic medications during the review period contained documentation of informed consent for each medication the child was taking.

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consent in these 57 cases. Reviewers also looked up each of these 57 children in the Psychotropic Medication Application Database (PMAD) for additional information and found that while the PMAD contained information about medications and consents for 36 of these children, there was no record in the PMAD at all for 21 of the children.122
Based on the combination of the supplemental information provided by the Department and the information contained in the PMAD, reviewers concluded that informed consent was obtained for each medication taken during the review period in an additional 21% of cases, but the documentation either had not been in the case files or reviewers had been unable to find it. As a result of this follow-up, reviewers concluded that informed consent had been obtained and documented in 70% (40) of the 57 cases of children receiving psychotropic medications during the review period. (See Figure 48).

Figure 48: Consent for Administration of

Psychotropic Medications (Adjusted)

(n=57)

Child's (16 or older) consent
obtained 16%

Parental consent obtained 42%

No consent 30%

Health Unit Nurse consent obtained
12%

Sources: Brian A. Case File Review, October 1, 2005 - March 31, 2006
In several cases, the Department indicated that the parent gave verbal consent for the medication to either the prescribing psychiatrist or the DCS Health Unit Nurse but did not sign a consent form. Verbal consent, if properly obtained and documented by the treating

122 The Department’s follow-up response indicated that the DCS Health Unit Nurses could find no record that four of these 21 children were taking psychotropic medications. It is possible that these four children were not taking psychotropic medications during the review period, but the Department’s responses in those cases were not detailed enough to support this conclusion because they did not reconcile the nurses’ statements with the documentation in the case files that led the reviewers to believe the children were taking psychotropic medications.
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physician, may actually be a better indication that a parent has had a discussion about the benefits and risks of the medication than a printed form in a file with a signature on it.123
Of the 40 cases in which consent was obtained for each medication taken during the review period, only three did not contain the preferred type of consent. Although the approval of the DCS Health Unit Nurse was obtained in those three cases, parental consent would have been preferred.
Of the 14 children age 16 or older who were administered psychotropic medication during the review period, nine (64%) consented to all of those medications. Consent was not obtained for each medication taken during the review period in the five remaining cases.
In several cases, supplemental documentation established that appropriate consents had been obtained for medications the children are currently prescribed, but did not establish consent for medication that the children were taking during the review period.
Reviewers noted specific concerns related to the use of psychotropic medications in ten cases, and these cases were also referred to DCS for follow-up. Examples of the issues identified by reviewers include: concerns that a child who had serious mental health needs and had been taking psychotropic medications appeared to no longer be taking the medications, and no explanation for this was provided in the case file; concerns that a child was taking psychotropic medications but was not receiving any other services (such as counseling) to address his mental health needs; and concerns that a child’s medications were not being adequately monitored. Based on the supplemental documentation provided by the Department, reviewers concluded that in nine of the ten cases, the reviewers’ concerns had been addressed and the children’s needs related to psychotropic medication were being met.
There was only one case in which the reviewer’s concerns did not appear to have been addressed. The case file contained a notation that the child “was on medication [Zoloft] but has not taken it consistently. Need to make sure that this is monitored.” The reviewer was concerned because the case file did not document that the child’s medication was being monitored regularly. According to supplemental information provided by the Department, the Health Unit Nurse had been unaware that the child was taking any psychotropic medication until she received the inquiry from the reviewer. The Department has forwarded this case for further follow-up through the CQI process in the
123 There is a limit to the conclusions that can be drawn from a case file review about the significance of documentation of informed consent. A signed informed consent form is not necessarily indicative that best practice standards have been followed. Reviewers noticed that several files contained blank consent forms that had been signed by the parent. The DCS Director of Medical and Behavioral Services stated that she believes the form is sometimes being included in a packet of information that the parent must complete, but she does not know how prevalent this practice is. The Department believes that the various training and education initiatives conducted by the health unit nurses for DCS and private provider staff in addition to the Psychotropic Medication Policy Training currently being implemented should help address this issue. The Director of Medical and Behavioral Services has also asked the Regional Administrators to discuss this issue at their regional leadership team meetings.
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regions, along with the cases in which appropriate consent was not obtained for each psychotropic medication taken during the review period.
D. Education
The Settlement Agreement requires that all children in DCS custody have access to a “reasonable and appropriate education, including special education services, the need for which shall be timely identified.”124 For children in foster care, ensuring a reasonable and appropriate education is complicated by the placement changes many foster children experience that often necessitate a change in schools.125 For this reason, there are heightened concerns about whether the educational needs of children in custody are being met.
1. School Attendance
Of the 188 case files of school-age children in this year’s review sample, 60% (112) of the case files contained documentation of regular school attendance. In the remaining 76 cases, reviewers found indicators in the case file that 36 children were not attending school regularly and found that case file documentation was inadequate to make any determination regarding school attendance for 40 children.126 Reviewers requested that the Department provide additional information with respect to these cases.
Of the 40 cases in which reviewers had been unable to determine if the child was attending school regularly, supplemental documentation established that five children did attend school regularly and five children did not attend school regularly during the review period. The reviewers could not determine in the remaining 30 cases whether the children had excessive unexcused absences.127 Based on both documentation in the case file and supplemental documentation, received from the Department, reviewers concluded that children regularly attended school in 62% (117) of the 188 cases of school-age children reviewed, representing a decrease from last year.128
2. Report Cards
One source of information about a child’s academic and developmental well-being is the school report card. Reviewers looked for copies of a recent report card in the case file. A recent report card was defined as one from the grading period ending before the completion of the review period. Based on the timing of the Case File Review, this
124 Brian A. Settlement Agreement VI.E. 125 See discussion of Placement Changes in Subsection I. 126 Reviewers used the standard of no more than five days of unexcused absences during the review period as a guideline for determining regular school attendance and requested follow-up in cases in which it appeared to be more than five unexcused absences. 127 The follow-up documentation did not allow reviewers to distinguish between excused and unexcused absences. In addition, documentation in some cases did not include information for every school the child attended during the review period. 128 The 2005 Case File Review showed 80% regular attendance of 177 cases of school-age children.
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allowed case managers at least six weeks to add an updated copy of the report card to the case file before the file was pulled for review.
In 39% (74) of the cases of 188 school-age children reviewed, there was a recent copy of the child’s report card in the file. This was a decrease from the 51% of 177 cases with a recent report card in the case file in the 2005 Case File Review. In 7% (13) of the cases, there was a report card in the case file, but reviewers were unable to determine which grading period it represented. (See Figure 49).
Figure 49: Current Copy of Child's Report Card in Case File (n=188)

Yes

39% Report card

for current

No

year, but

54%

UTD marking

period

7%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all school-age children

3. Children Moving from One School to Another
Children entering custody already experience a lack of stability, and a school change causes yet more instability. Although the Settlement Agreement does not address school changes, the reviewers sought to determine whether a child experienced a school change as a result of either entering custody or changing placements while in custody.
Sixty-one percent (115) of the 188 school-age children in the review sample changed schools upon entering custody, indicating that many children are being removed not only from their homes but from their communities when entering state custody. Reviewers were unable to determine whether the child changed schools upon entry into custody in 10% (18) of the 188 cases of school-age children.
More than half (55%; 64 cases) of the 116 school-age children who experienced a placement change during the review period changed schools as a result of the placement change.129 In 16% (18) of the 116 cases of school-age children who experienced a

129 The 2005 Case File Review found that 60% of 177 school-age children changed schools upon entering custody and 64% of school-age children changed schools as a result of changing placements during the review period.
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placement change while in care, reviewers were unable to determine whether the child changed schools as a result of the placement change.130 (See Figures 50 and 51).
Figure 50: Child Changed Schools When Entering Care (n=188)

Yes 61%

No 29%
UTD 10%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all school-age children
Figure 51: Child's Placement Change Required School Change (n=116)

Yes 55%

No 29%
UTD 16%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all school-age children who experienced a placement change
For children who changed schools when entering custody, the case review protocol collected information about whether the reason for that initial placement outside of the child’s school zone was related to placing the child with kin (either blood or fictive).131 Because there is a preference for placing children with kin, if that placement necessitates a change in schools, that change may make the most sense for the child.
For 11% (13) of the 115 children who changed schools when entering custody, reviewers judged, based on case file documentation, that the change in school was related to placing
130 Reviewers were sometimes unable to determine from case file documentation whether or not the child changed schools—a reflection of the sometimes extremely poor documentation of educational issues in the children’s files. 131 Information about a child’s school zone was rarely documented in the file. Reviewers assumed a change in school zone if the child changed schools when entering custody.
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the child with kin. For 87% (100) of the children, it did not appear that the placement outside of the school zone was related to a kinship placement. Case file documentation about the initial placement decision and the school change was inadequate for reviewers to judge whether the placement was made for a kinship reason in 2% (2) of the cases. (See Figure 52).
Figure 52: Child Initially Placed Outside School Zone to Facilitate Kinship Placement (n=115)

UTD

2%

Yes

No

11%

87%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all school-age children who changed schools when entering custody
4. Children Attending In-House Schools
In some instances, children in DCS custody who are in congregate care placements are schooled in “in-house” schools that operate on-site at their placement facility. However, there is a strong preference for educating children in the least restrictive educational setting, and it is the general expectation that even class members in congregate care facilities will be educated in normal school settings rather than in in-house schools.
Of the 25 children in the sample who were in congregate care placements at the end of the review period, 56% (14 children) were attending in-house schools. These 14 children being educated in in-house schools represented 7% of the 188 school-age children in the review sample. This is similar to the findings of last year’s review.132
5. Special Education Services
In an effort to determine whether children needed special education services, reviewers used such indicators as whether the child was mentally retarded, developmentally delayed, learning disabled, seriously emotionally disturbed, or had an IEP in their case file. For this year’s Case File Review, the Department also provided reviewers with a list of indicators for the need for special education services: failing a grade or being socially promoted; disruptive behaviors; alternative school placement; hyperactivity or inattention; repeated suspensions; a stark difference in academic achievement between subjects; or a DSM-IV diagnosis.
132 The 2005 Case File Review found that 64% of the 22 children placed in non-family settings were attending in-house schools, representing 8% of the total population of 177 school-age children.
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Reviewers found one or more of these indicators in 45% (85) of the 188 case files of school-age children in the sample. Follow-up information was requested from the Department for the cases in which the Case File Review indicated a possible need for special education services but for which no referral for or provision of services was documented in the case file. This follow-up had two purposes. The first was to determine the extent to which this finding represents cases of children whose educational needs were not met or merely cases in which documentation of service provision was missing. The second was to alert the Department to any cases in which children’s educational needs were not being met so that corrective action could be taken. Based on the supplemental documentation provided by the Department on the 85 children originally identified by reviewers as needing special education services, the reviewers concluded that 13 of those children had been previously evaluated for special education services and were not in actual need of those services during the review period. The Department confirmed that the remaining 72 children were in need of special education services. Based on the supplemental documentation provided for those 72 children, reviewers concluded that 50 (69%) were receiving necessary services and that all but one of those children had a current IEP.133 With respect to the remaining 22 (31%) children who were not receiving necessary special education services, reviewers were satisfied, based upon additional documentation provided by the Department, that the Department had taken or is currently taking steps to address these issues for all 22 children for whom follow-up was requested.
133 Copies of current IEPs were provided through follow-up. File documentation did not regularly include a copy of a current IEP. The one child identified as needing and receiving special education services who did not have a current IEP was a child whose IEP has been “applied for” on his Education Passport and the Education Specialist “is involved and is ensuring that the IEP process continues at his most recent school.”
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V. Case Transfer
The caseworker is a core member of the Child and Family Team. When a case is transferred to a new worker, it takes time for him or her to learn about and develop a relationship with the child and family. Sometimes vital information about the child and family may stay with the departing caseworker, thus delaying the success of the Child and Family Team process. In moving to a “one worker, one child” model of case management, DCS recognizes the importance of case manager continuity and seeks to eliminate unnecessary case handoffs from one worker to another.
While DCS can reform its structure to avoid handoffs, some handoffs will occur as part of worker turnover. The Settlement Agreement therefore contains a number of provisions intended to minimize the disruption that is inherent in the transfer of a case from one caseworker to another:
• When a case manager leaves the agency, his/her cases are to be reassigned within one business day. No cases are to be “uncovered” at any time.134
• Other than cases in which the departing case manager leaves without prior notice or cases in which some other “documented emergency” exists, the departing case manager and the new case manager are to have a face-to-face meeting to discuss the case.135
• The departing case manager is required to make every effort to introduce the receiving case manager, in person, to the child and the child’s parents.136
Although the Case File Review sample involves children who have been in custody for fewer than six months, 18% (49) of those children experienced at least one case manager change, a slight improvement over last year’s finding.137 (See Figure 53). In many of the cases that were transferred, there was no formal declaration of case transfer; reviewers knew that the child received a new caseworker only because the worker’s name changed in the case recordings.
134 Brian A. Settlement Agreement V.F.5 135 Brian A. Settlement Agreement V.F.5 136 Brian A. Settlement Agreement V.F.5 137 The 2005 Case File Review found that 22% of the 276 children in the review sample experienced at least one case manager change during the six or fewer months they had been in custody.
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Figure 53: Case Transferred to a New Worker during the Review Period (n=268)

More than once 3%
Once 15%

Not transferred 82%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
Of the 49 cases that were transferred, 18% (9) contained documentation that a case transfer meeting occurred between the departing and receiving case managers for all case transfers during the review period,138 representing a significant decrease from the 2005 finding.139 (See Figure 54). In one of these cases, the new case manager had been working the case with the previous case manager as part of training since the child entered custody, so no meeting between case managers or introduction to the family was needed when the case manager took over the case after completing the training.

138 The percentage of cases not documenting a face-to-face meeting between case managers may include some cases in which a meeting would not be expected because the departing case manager left the Department without reasonable notice or because of some other emergent circumstance. However, the circumstances under which case managers leave their positions are rarely documented in the case records, and it is therefore often impossible to determine from a case file review whether or not such a meeting would be expected in the cases reviewed. 139 The 2005 Case File Review found that of the 60 case files in which at least one transfer to a new worker occurred during the review period, 33% contained documentation that a case file transfer meeting occurred between the departing and receiving case managers for all case transfers during the review period.
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Figure 54: Case Transfer Included a Face-to-Face Meeting between Case Managers (n=49)

Not for any case transfers
82%

Yes for all case trans f ers 18%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which at least one transfer to a new worker occurred
There was documentation that the departing case manager introduced the receiving case manager to the child and parent(s) for all case transfers in 16% (8) of the 49 applicable cases, also representing a significant decrease from last year’s finding.140 (See Figure 55). One of these cases is the same case described above in which the new case manager had been working the case with the previous case manager as part of training since the child entered custody. In two of the cases included in the “not for any” category, the new case manager was introduced to the child or parent, but not both.

Figure 55: Case File Documents Efforts to Introduce New Case Manager to Child and
Child's Parents (n=49)

Not for any case transfers
82%

Yes, for all case transfers
16%
Yes, for some case transfers
2%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 n equals all cases in which at least one transfer to a new worker occurred
140 The 2005 Case File Review found that of the 60 case files in which at least one transfer to a new worker occurred during the review period, 31% documented that the departing case manager introduced the receiving case manager to the child and parent(s) in all case transfers.
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VI. Maltreatment While in DCS Custody
A. Child Protective Services
The Settlement Agreement provides that “all matters of abuse or neglect of foster children in DCS custody shall be investigated by the Child Protective Services unit in the manner and within the timeframe provided by law.” Department Policy (Chapter 14) addresses the nature, timeframes, and requirements for fulfilling a CPS investigation. In addition, the Settlement Agreement and DCS policy require that matters of abuse or neglect occurring within DCS foster homes, provider agency foster homes, congregate care facilities, and institutional settings be investigated by Child Protective Services and referred to and reviewed by Quality Assurance and the Licensing Division, when appropriate.141
Based on documentation in the case files, reviewers identified 24 (9%) of the 268 children in the review sample who were the subject of a CPS investigation during the review period. These cases were forwarded to the Department for follow-up to determine whether an investigation occurred and, if so, to ensure that the Department had responded appropriately and that the children were safe from harm. Based on follow-up received from the regions and the Directors of Special Investigations Unit and Child Protective Services, reviewers concluded that 14 of those 24 children (5% of 268 children in the review sample) were the subject of a CPS investigation during the review period for an allegation that they had been abused or neglected during the review period.142 (See Figure 56). This finding is similar to the finding from last year’s review.143
141 Brian A. Settlement Agreement III.B; Incident Reporting Manual for Contract Agencies, DCS Foster Care and Child Protective Services. 142 Of the ten other cases originally identified, eight involved investigations of the abuse or neglect allegations that had resulted in the child entering custody; one case involved a child who was a witness to, but not the victim of, alleged sexual abuse of another child in the foster home; one case was of a child who was reported to be the perpetrator of abuse. 143 The 2005 Case File Review indicated that 3% of the 276 children reviewed had been the subject of a CPS investigation while in DCS custody.
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Figure 56: Child Was Subject of CPS Investigation during Custody Episode
(n=268)
Yes 5%
No 95%
Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
Reviewers also identified an additional case in which a CPS referral was mentioned in the case file, but for which the child was not the subject of an investigation during the review period. In this case, the child was moved from a DCS foster home after the foster father made suggestive comments which made her uncomfortable.144 Foster Parent Support discussed the inappropriate behavior with the foster parents and provided counseling to address the issue. The home has not had any children placed in it for over a year; however, the region expressed confidence in the quality of this home and plans to utilize this home for future placements.
The 14 children identified by reviewers as being the subject of a CPS investigation were the subject of 19 CPS investigations during the review period. Five children were each the subject of two CPS investigations. Nine of these cases were indicated.145 Of these nine indicated cases, the Department reported the following:
• In one case, it was alleged that the child was sexually abused by her foster mother’s male relative in the kinship home placement. This case was indicated against the relative and unfounded for the foster parent. This child was moved to another foster home and the home was closed.
• For another child who was the subject of two investigations, visits were suspended for incidents occurring in the birth home during overnight visits.
• In another case, the foster parents were indicated for medical maltreatment against the child; the home was closed and the child reunified with his birth parents.
• For another child, the case was indicated for drug exposure against the grandmother who was the child’s kinship caregiver. A Child and Family Team Meeting was held and a safety agreement was reached that allowed the child to remain in the home with another kinship caregiver, while the grandmother left the home for alcohol and drug treatment.
144 According to the case file, the case manager, foster father, and child were shopping for the child’s clothing allotment, when the foster father suggested that the child purchase a bikini to wear in the hot tub. The child expressed that she was uncomfortable and was moved from the home. 145 The reviewers did not conduct any independent investigations of these cases.
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• For two cases in which siblings were the subject of an investigation of environmental neglect and lack of supervision, the mother was indicated and visits were suspended until her parenting and supervision skills improved.
• Another case was indicated against a kinship caregiver for putting the child at substantial risk of physical injury. The home was closed and the child was placed in a DCS foster home.
• In the final case, the child was the victim of sexual abuse by her grandmother’s brother, while placed in the grandmother’s home as a kinship foster home. The child was moved from this home the day of the referral and the home was closed.
The Department reported that four of the nine indicated cases occurred in the resource home, necessitating a closure of the home and a removal of the child. The reviewers examined the Closed Resource Homes Report in TNKids and found two of the four homes that were reported to be closed. The remaining two homes were not found in either the Closed or Open Resource Homes Reports.
One of these homes is still not closed from a November 2005 SIU indicated investigation. This home was expedited for a relative placement but remained in the system as “pending approval”; the region stated that it did not receive the results of the case from SIU. The Department is now aware of this and is requesting that this home be closed immediately. With respect to the second home, the Department stated that the home should have been closed as of March 2006 and has now taken action to correct this in TNKids.
Of the nine indicated cases, six were CPS cases and three were SIU cases. The Department reported that all six CPS investigations were completed within the 60-day timeframe. The three SIU investigations were closed within 61, 63, and 88 days respectively.146
B. Serious Incident Reporting and Tracking
Serious Incident Reports (SIR) are the primary means by which Central Office staff is notified about incidents occurring in facilities and contract agency foster homes. Serious Incident Reports include such things as reports of injury, medication errors, restraints, and runaways. Matters appropriate for CPS referral are also included in the Serious Incident Reports per DCS policy, and reporting abuse or neglect to Central Office via a Serious Incident Report does not preclude reporting the incident to Centralized Intake of CPS.147 Although DCS policy requires that Serious Incident Reports be completed for incidents involving children in DCS foster homes as well, it does not appear that case practice currently reflects this policy. Reviewers did not find in the Serious Incident Report any of the 19 CPS cases identified through the Case File Review.
146 The 61 and 63-day investigations were completed within the 60-day timeframe but had not been closed in TNKids. The 88-day investigation remained open at the request of the Child Protective Investigative Team because the detective had difficulty locating the alleged perpetrator. 147 Incident Reporting Manual for Contract Agencies, DCS Foster Care and Child Protective Services and Incident Reporting Manual for YDC and DCS Group Homes.
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Based on the follow-up, it did not appear to the reviewers that DCS staff is clear about how SIU and SIR reporting should be integrated and coordinated.148 In response to concerns raised by the reviewers, the Department explained that in order to better track Serious Incident Reports and Special Investigations Unit (SIU), the Department is developing a new system to streamline and integrate the SIR/SIU process. The current system relies on case managers or provider staff to report abuse SIRs to Central Office and Central Intake. The new system is designed to create a closer interface with Central Intake and SIU, relying on an automated system that sends email alerts to all members of the Central Intake Responder Group and requires that SIRs either be screened out or assigned to SIU for further investigation. This new system is scheduled to be piloted by two providers starting January 2007. The Department plans to roll out this new system to both DCS and provider staff by February 2007. The TAC will report on the implementation of this new system in the next monitoring report.
C. Physical Restraints and Safety Concerns149
Reviewers noted concerns about a child’s safety in two cases and concerns about the use of physical restraints in four cases. Reviewers requested regional follow-up on these cases.
Based on the follow-up, reviewers were satisfied that the Department has taken or is currently taking steps to address these physical restraint and safety issues. With respect to the cases of physical restraint, in one of the cases, the regional psychologist is following-up with the provider where the restraints occurred; the provider agency reported being receptive to learning ways to improve its reporting system. In one case, the Director of Medical and Behavioral Services reviewed the case and will add the provider to the Provider Quality Watch Group that meets monthly to review agencies and concerns. In another case of physical restraint, the Department conducted a review similar to a Quality Service Review, interviewing the child, his counselor, teachers, and facility staff. The child’s behavior has improved, especially since changing house parents and slightly increasing his psychotropic medication, and the Department reports that good efforts are being made on his behalf at the facility. In another case in which reviewers had concerns about a physical restraint, the Director of Medical and Behavioral Sciences reviewed the case and reported that the use of physical intervention was warranted in this incident, that the restraint lasted a short time and was conducted properly, and that the restraint was reported to all the appropriate people in a timely manner.
With respect to the cases in which there were safety concerns, in one case, reviewers were concerned that the child was being bullied at school. This was addressed through team meetings and with the Team Coordinator and Regional Administrator. The school
148 It was not clear to all DCS staff that every SIU referral should have a parallel SIR report associated with it. For example, in one case, a child was allegedly hit in the face by a coach at a public high school. This was an SIU Investigation, but Central Office staff was not aware if an SIR should have been reported since the incident did not occur at a facility or resource home. It was explained to reviewers that although all incidents should be reported through an SIR regardless of location, case managers may not be aware of this. 149 There were no reports of chemical restraint/sedation or seclusion/isolation in this year’s review sample.
100

began the process of requesting a safety transfer for the child. The child left custody in February 2006, and his case was transferred to the Prevention Unit. The Prevention worker met with the new high school guidance counselor to discuss the child’s needs, and home counseling was provided with a successful outcome. In the other case, reviewers were concerned that a child may have been sexually abused during a kinship placement; upon close review with Central Office, the reviewers were satisfied that the child was safe and that the Department had responded appropriately. In addition to forwarding the physical restraint and safety issues to the Department for follow-up, reviewers searched Serious Incident Reports generated by the Department to verify that these incidents were accurately reported. The search indicated that one child who experienced physical restraints had only two of his multiple physical restraints reported in a Serious Incident Report. Two children had all of their physical restraints appropriately reported in an SIR; another child did not have an SIR documented for a physical restraint. For the two cases in which reviewers had a safety concern, the search indicated that there were no SIRs reported for these incidents.
101

VII. Case File Contents
1. Completeness of Case Files and Timeliness of Case Recordings
One of the basic requirements for a well-functioning child welfare system is that case files be kept up to date, and that there are no significant gaps in documentation. The Settlement Agreement therefore provides that case files be updated within 30 days of case activity.150
In the 2005 Case File Review, reviewers determined whether a case file was up to date by looking at both the case recordings (to make sure that they were entered within thirty days of case activity) and at the other documents in the file. If either the case file recordings were not entered within thirty days or other documents reflecting important activities were not in the file, the file was not considered up to date.
This year, reviewers addressed timeliness of case recordings separately from the question of the presence or absence of other documentation.
Reviewers found that case files contained significant gaps in documentation in over onethird (38%) of the 268 cases reviewed.151 (See Figure 57). In the majority of these cases, the lack of documentation prevented the reviewer from being able to understand a child’s needs in a critical area (or areas); these were most often the areas of education, health, and mental health.152 In a few cases, there was so much information missing from the file that it was difficult for the reviewer to understand what was happening in the case.
Figure 57: Case File Documentation (n=268)

Significant gaps in
documentation 38%

No significant gaps in
documentation 62%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
150 Brian A. Settlement Agreement V.G. and DCS Policy 31.14. 151 The 2005 Case File Review did not collect this information. 152 The discussion in sub-section IV (Services and Well-Being) of this report exemplifies the problems created when file documentation is incomplete.
102

Reviewers found that case recordings were entered within 30 days of case activity in 85% of the cases reviewed.153 (See Figure 58).
Figure 58: Timely Entry of Case Recordings (n=268)

Case recordings not entered w ithin
30 days 15%

Case recordings entered w ithin
30 days 85%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006
2. Accuracy of Placement Information in TNKids
In the early years of the reform effort, there were significant problems with the accuracy of the placement data in TNKids. The Department has therefore focused considerable attention on strategies for improving the accuracy of its TNKids data in general and of placement data in particular, including some technological cross checks that flag potential placement information errors.
In the 2005 Case File Review, reviewers identified a significant number of cases in which the placement information in the hard file and case recordings were not in agreement with the placement information in the TNKids placement screen. Reviewers determined that the placement screen was the inaccurate source in about half of the cases in which there was disagreement between the hard file and the placement screen.154
In reporting the results of the 2005 Case File Review, the TAC discussed several strategies that were being planned or implemented at that time to improve the accuracy of placement data.155 As a long term strategy, the new SACWIS system that the Department is developing will be designed to facilitate accurate data entry and to utilize technological prompts and checks to improve accuracy and flag errors. In the interim, the Department
153 The 2005 Case File Review found that case files were updated within 30 days of case activity in only 35% of cases. 154 The 2005 Case File Review found that the type of placement agreed in 89% of 275 cases, the placement location (e.g. name of foster home or placement facility) agreed in 84% of 275 cases, and placement entry/exit dates agreed in 79% of 274 cases. 155 For a more detailed discussion of these strategies as well as the accuracy of TNKids placement information at the time of last year’s review, see the TAC Monitoring Report, January 19, 2006, pp.91-92.
103

planned to implement a new TNKids build that would: 1) consolidate all approval information for foster homes and facilities (whether DCS or private provider) into TNKids, 2) consolidate contract provider placement authorizations into TNKids, and 3) improve the mechanism for verifying TNKids placement information before payments could be made.156 Finally, the Department expected that a number of its practice reforms, including implementation of the unified placement process and requiring Child and Family Team Meetings prior to any placement change, would result in improved communication and coordination among staff in the different DCS units with responsibility for updating placement information in TNKids. As the field started to experience the benefits of the resource home reporting of the new TNKids build, they would have a direct stake in the accuracy of the data and in ensuring that it be updated conscientiously.
Because the 2006 Case File Review was conducted prior to the completion of the TNKids build, it did not make sense to repeat the placement screen/hard file comparison that had been included in the 2005 Review.
Nevertheless, in the course of the review, the reviewers noted a number of placement related inaccuracies and followed up with Department staff to better understand the reason for the inaccuracies and determine whether the TNKids system as it currently operates under the new build would prevent or flag similar placement errors.
In the course of the follow-up conversations, the reviewers learned that the Department had to cut some of the planned improvements from the June 2006 build. The planned consolidations of foster home approval information and contract provider placement authorizations into TNKids were accomplished, but the planned improvement of the mechanism for verifying placement information in TNKids was not.
As TNKids currently functions under the new build, there is a different process for payment to private providers than for payment to DCS-operated foster homes and facilities. In order for a private provider to receive payment for a placement, the provider must submit an invoice for payment that specifies the dates the child was placed with the provider during the billing cycle. The dates for which the provider requests payment in the invoice are then matched with authorization information in TNKids to ensure that the child was authorized for placement with the provider on those dates. Then, for foster home placements, approval information in TNKids must verify that the private provider foster home was an approved placement during the time period for which payment is requested, and placement information in TNKids must indicate that the child was placed
156 Prior to the 2006 TNKids build, information related to contract provider placement authorizations was contained in TNKids Financials, a separate application external from TNKids. Information about approval of DCS and private provider foster homes was contained in another separate application called the FHACP. Maintaining these separate applications created duplication of work because some of the information contained in these applications had to be entered into TNKids as well. Prior to the 2006 build, there was a mechanism for verifying that a child’s TNKids record reflected placement with a particular private provider before that provider could be paid, but there was no parallel mechanism for verifying placement within DCS-operated foster homes.
104

with that particular provider during that same time period. Finally, the DCS Supervisor for the case must approve the provider’s invoice.
This five-step process ensures that a private provider only receives payment for the dates during which a particular child was authorized for placement with that provider. The process also ensures that the placement information in TNKids accurately reflects the dates of placement with a particular provider since this information must be accurate before payment can be made. This process does not, however, ensure that the placement information in TNKids accurately reflects the location of a child’s placements within a particular provider’s continuum. Although DCS policy states that providers with continuum contracts must inform the DCS case manager within 24 hours of moving a child within their continuum, current practice among continuum providers does not always adhere to this policy.157 Because the payment process verifies that a child was placed with a particular provider but does not verify that a child was placed in a particular home or facility within a provider’s continuum, it is possible for the TNKids placement screen to accurately reflect that a child was placed with a particular provider but to provide inaccurate information about the child’s actual placement location within that provider’s continuum.
Unlike the process through which private providers receive payment for placements, the process through which DCS foster homes and facilities receive payment does not require verification of the placement information in TNKids, although the processes are otherwise similar. The foster parent must request payment for the dates that a child was placed in the foster home during the billing cycle. The ChipFins system then references DCS foster home approval information in TNKids to verify that the foster home was an approved home during the time period for which payment is requested, and the DCS case manager must verify that the child was placed in that foster home during that same time period. Since verification of TNKids placement information is not included in this process, a case manager may verify that a child is in a particular foster home and the foster parent may receive payment even if the TNKids placement screen has not been updated to reflect that the child was placed in that foster home. The Department plans to develop a reconciliation system through which DCS foster home service dates that are recorded and paid in the ChipFins system would be compared with the placement information in TNKids so that any inaccuracies in either the ChipFins service/payment dates or the TNKids placement information could be identified and corrected, but there is currently no timeframe for development and implementation of this system.
Although this year’s Case File Review did not collect information about the accuracy of the placement information in TNKids, monitoring staff identified at least 14 children through the Case File Review and other projects whose TNKids placement screens
157 Private Provider Manual, Chapter 7, Section I.B.2. The Department is currently implementing a system for assessing penalties from providers who do not notify DCS immediately when a child is moved. The Department has also revised this policy to require that continuum providers request permission from the DCS case manager prior to moving a child within the continuum, and that all decisions to move a child must be made within the Child and Family Team process. The Department has not yet implemented this revised policy.
105

contained inaccurate information. The Department was asked to update the TNKids placement information for those children, and as of this report, the TNKids placement information has been updated for 11 of those children.
106

VIII. Legal Advocacy
While this year’s Case File Review protocol did not focus on issues of the interface of the Department and the Juvenile Court process, data was collected on whether children had individual legal representation.
Under Tennessee law, every neglected or abused child should be receiving active legal advocacy from a lawyer guardian ad litem (GAL) appointed by the juvenile court. Under Tennessee Supreme Court Rule 40 setting forth the responsibilities of the guardian ad litem, the GAL should not only be representing the child in court proceedings, but should be participating in Child and Family Team Meetings, monitoring the child’s progress throughout the child’s time in custody, and ensuring that the child is receiving the care and attention that the child needs.
In 89% of the cases reviewed, the file stated that the child was represented by a guardian ad litem and included the name of the guardian ad litem in the appropriate field or in case notes, an improvement over last year’s findings of children being represented by a guardian ad litem.158 (See Figure 59).
Figure 59: Documentation that Child Has a Guardian ad litem (n=268)

Yes

No

89%

11%

Source: Brian A. Case File Review, October 1, 2005 – March 31, 2006 and follow-up information provided by DCS
Reviewers requested from the Department follow-up on 30 children for whom there was no indication in their file that they were represented by guardians ad litem. The Department provided supplemental documentation that one of these 30 children had been

158 The 2005 Case File Review reported 81% of 271 children appointed a guardian ad litem.
107

appointed a GAL and confirmed that 23 of the children should have been appointed GALs but were not.159
The six remaining cases involved children who were charged as unruly children. One of those children had been appointed a lawyer rather than a guardian ad litem; the other five children charged as unruly had no legal representation. The Department staff explained that it was their understanding that children facing commitment to state custody in an unruly child proceeding are not entitled to legal advocacy. In response to further inquiry, the Department clarified that its position is that children committed to DCS custody on their first or second unruly proceeding in juvenile court are not entitled to representation by either a guardian ad litem or an attorney, but that they would be entitled to be represented by a lawyer before they could be committed following a third or subsequent unruly child proceeding.160
Notwithstanding the improvement in the percentage of children represented by GALs in this year’s review compared with last year, the fact that more than ten percent of the children in the sample did not have a legal advocate continues to be a significant concern.161
As discussed in the previous TAC report, the provision of legal representation for children who are subject to commitment to state custody is clearly the responsibility of the judiciary and the violation by a juvenile court of the right of abused and neglected children and unruly children to legal representation is something that should be addressed by the judiciary—if not administratively by the Administrative Office of the Courts, then through the process of appellate review.162
159 Four of these 23 children are no longer in custody. For seven of the 23 children, the case manager indicated that, in response to the inquiry made by reviewers, a request for appointment of a GAL was being made; however, no information has been received about whether a GAL has been appointed for any of these seven children. For 12 children no request for the appointment of a GAL has been made as far as reviewers are aware. 160 The Department’s position is based on its reading of the current Juvenile Court Act. The Juvenile Court Act previously prohibited the commitment of an unruly child to state custody unless the child had two prior unruly child convictions. See State ex rel. Hockett v. Hatler, 567 SW2d 472 (Tenn.Ct.App. 1977). In light of the risk of commitment associated with the third unruly child proceeding, the Act extended the right to counsel to unruly children who had two prior convictions. The Juvenile Court Act was subsequently amended so that there is presently no prohibition against commitment of a child on his first or second unruly child conviction. However, the section of the act regarding appointment of counsel continues to refer to the previous section and to statutory language that was deleted. See T.C.A. 37-1-126(a)(1). 161 The reviewers included the five unrepresented unruly children in this calculation, even though reviewers did not determine whether each of the five were the subject of three or more unruly child proceedings. In the absence of follow up information to the contrary, the reviewers assumed that each child either (a) was the subject of three or more unruly proceedings and therefore, under the Department’s interpretation of the law, should have been appointed counsel; and/or (b) was entitled to appointment of a guardian ad litem pursuant to TCA 37-1-149, which requires appointment of a GAL for children in any proceeding when there is a conflict of interest between the child’s parent and the child. (By definition, such a conflict would be present in almost every, if not every, unruly child proceeding.) 162 Monitoring Report of the Technical Assistance Committee in the case of Brian A. v Bredesen, January 19, 2006, page 93.
108

Nevertheless, the Department of Children’s Services has both the opportunity and obligation to take actions within its power to address the situation in those counties in which judges are not complying with the GAL appointment requirements. Standard 9204 of the DCS Practice Model states that, “whenever a child or parent appears without legal representation, DCS legal staff will make a motion requesting the court to inquire about the child or parent’s knowledge of their right to representation and to appoint counsel and/or a guardian ad litem as is required by law.” By filing these motions and seeking appellate review if the court, notwithstanding the motion, still refuses to provide representation for the child, the Department makes it possible for this important issue to be addressed. The Department has reaffirmed its attorneys’ commitment to ensuring that all parties, children and parents, receive adequate representation and are afforded due process at all stages of the proceedings in court. The Department is also working with the Tennessee Supreme Court, Court Improvement Program’s Court Improvement Workgroup to amend the Juvenile Court Act to clearly provide for representation of children in any unruly child proceeding. However, based on the response of staff regarding those children in the case file review sample who were unrepresented, it does not appear that case managers have a clear understanding of what they are expected to do when a class member on his or her caseload is unrepresented, and it appears that there is confusion about when, or under what circumstances, an unruly child is entitled to a lawyer or a GAL. In addition, while the Department maintains that DCS attorneys always make a motion and ensure that each child has a guardian ad litem in cases “in which there are allegations of abuse” (emphasis added), it is not clear, in cases in which there are allegations of neglect or unruly child behavior, but not allegations of abuse, that DCS attorneys always file motions to appoint a GAL or lawyer when a child is unrepresented.
109

APPENDIX A
ENTRY AND EXIT DISPARITIES IN THE TENNESSEE FOSTER CARE SYSTEM

APPENDIX B DIVERSITY GAP ANALYSIS

DAVIDSON REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

ALL OTHER

31

MIXED

250

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
0.3% 2.3% 2.6%

DAVIDSON TOTAL

#

%

569,891

10.0%

381,783

67.0%

147,696

25.9%

29,173

5.1%

11,239

2.0%

40,412

7.1%

26,091

4.6%

DAVIDSON TOTAL

#

%

306,420

10.5%

217,330

70.9%

68,440

22.3%

20,650

6.7%

13,910

4.5%

DAVIDSON TOTAL

#

%

126,447

9.0%

69,811

55.2%

44,366

35.1%

7,747

6.1%

4,523

3.6%

12,270

9.7%

7,409

5.9%

DAVIDSON TOTAL

#

%

1,148

10.8%

332

28.9%

770

67.1%

9

0.8%

37

3.2%

46

4.0%

13701: CS REG AD 23701: CS CAS MGR1 23702: CS CAS MGR2 23703: CS CAS MGR3 23704: CS CAS MGR4 23705: CS TEAM CRD 23706: CS PROG POS 13702: Officials/Adminstrators 23707: Professional 33701: Technicians 43701: Protective Services/Sworn 53701: Protective Services/Unsworn 63701: Administrative 73701: Skilled Craft 83701: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: DAVIDSON

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.4%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

33 14.5%

98 43.0%

0

0.0%

6

2.6%

12

5.3%

0

0.0%

14

6.1%

13

5.7%

0

0.0%

7

3.1%

3

1.3%

0

0.0%

0

0.0%

1

0.4%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

0.9%

4

1.8%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

0.9%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

7

3.1%

15

6.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

70 30.7%

148 64.9%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

4

1.8%

20

1

0.4%

0

5

2.2%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

10

4.4%

20

TOTAL* # 1 0 135 19 32 10 1 0 6 0 2 0 22 0 0
228

EAST REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

EAST TN TOTAL

#

%

663,334

11.7%

633,428

95.5%

13,959

2.1%

9,501

1.4%

6,446

1.0%

15,947

2.4%

10,036

1.5%

EAST TN TOTAL

#

%

332,400

11.4%

318,150

95.7%

6,280

1.9%

7,970

2.4%

3,950

1.2%

EAST TN TOTAL

#

%

153,731

11.0%

144,597

94.1%

3,776

2.5%

2,878

1.9%

2,480

1.6%

5,358

3.5%

3,348

2.2%

EAST TN TOTAL

#

%

1,439

13.5%

1,296

90.1%

66

4.6%

77

5.4%

11401: CS REG AD 21401: CS CAS MGR1 21402: CS CAS MGR2 21403: CS CAS MGR3 21404: CS CAS MGR4 21405: CS TEAM CRD 21406: CS PROG POS 11402: Officials/Adminstrators 21407: Professional 31401: Technicians 41401: Protective Services/Sworn 51401: Protective Services/Unsworn 61401: Administrative 71401: Skilled Craft 81401: Services/Maintenance Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: EAST TN

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

186 60.6%

8

2.6%

0

0.0%

10

3.3%

3

1.0%

0

0.0%

37 12.1%

2

0.7%

0

0.0%

7

2.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.3%

0

0.0%

0

0.0%

6

2.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

7

2.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

33 10.7%

1

0.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

288 93.8%

14

4.6%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

3

1.0%

14

1

0.3%

0

1

0.3%

0

0

0.0%

2

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

5

1.6%

17

TOTAL* # 1 0 197 14 40 7 0 1 6 0 7 0 34 0 0 307

HAMILTON REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

HAMILTON TOTAL

#

%

307,896

5.4%

235,000

76.3%

62,005

20.1%

7,376

2.4%

3,515

1.1%

10,891

3.5%

5,481

1.8%

HAMILTON TOTAL

#

%

158,760

5.5%

125,490

79.0%

27,740

17.5%

5,530

3.5%

2,820

1.8%

HAMILTON TOTAL

#

%

71,444

5.1%

48,988

68.6%

19,022

26.6%

1,966

2.8%

1,468

2.1%

3,434

4.8%

1,577

2.2%

HAMILTON TOTAL

#

%

618

5.8%

244

39.5%

342

55.3%

32

5.2%

12701: CS REG AD 22701: CS CAS MGR1 22702: CS CAS MGR2 22703: CS CAS MGR3 22704: CS CAS MGR4 22705: TEAM CRD 22706: CS PROG POS 12702: Officials/Adminstrators 22707: Professional 32701: Technicians 42701: Protective Services/Sworn 52701: Protective Services/Unsworn 62701: Administrative 72701: Skilled Craft 82701: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: HAMILTON

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

26 18.3%

53 37.3%

0

0.0%

8

5.6%

8

5.6%

0

0.0%

3

2.1%

11

7.7%

0

0.0%

2

1.4%

2

1.4%

0

0.0%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

3

2.1%

2

1.4%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

11

7.7%

9

6.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

56 39.4%

85 59.9%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.7%

2

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

1

0.7%

2

TOTAL* # 1 0 80 16 14 4 1 0 5 0 1 0 20 0 0
142

KNOX REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

KNOX TOTAL

#

%

382,032

6.7%

336,571

88.1%

32,987

8.6%

7,957

2.1%

4,517

1.2%

12,474

3.3%

4,803

1.3%

KNOX TOTAL

#

%

212,450

7.3%

190,690

89.8%

15,420

7.3%

6,340

3.0%

2,290

1.1%

KNOX TOTAL

#

%

85,093

6.1%

71,422

83.9%

9,750

11.5%

2,047

2.4%

1,874

2.2%

3,921

4.6%

1,494

1.8%

KNOX TOTAL

#

%

659

6.2%

380

57.7%

231

35.1%

48

7.3%

11701: CS REG AD 21701: CS CAS MGR1 21702: CS CAS MGR2 21703: CS CAS MGR3 21704: CS CAS MGR4 21705: TEAM CRD 21706: CS PROG POS 11702: Officials/Adminstrators 21707: Professional 31701: Technicians 41701: Protective Services/Sworn 51701: Protective Services/Unsworn 61701: Administrative 71701: Skilled Craft 81701: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: KNOX

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

0

0.0%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

58 36.9%

34 21.7%

0

0.0%

7

4.5%

2

1.3%

0

0.0%

15

9.6%

3

1.9%

0

0.0%

3

1.9%

3

1.9%

0

0.0%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

5

3.2%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

1.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

19 12.1%

2

1.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

110 70.1%

45 28.7%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.6%

2

1

0.6%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

2

0

0.0%

0

0

0.0%

2

1.3%

5

TOTAL* # 1 0 93 10 18 6 1 0 5 0 2 0 21 0 0
157

MID-CUMBERLAND REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

MC TOTAL

#

%

841,834

14.8%

737,595

87.6%

71,806

8.5%

21,665

2.6%

10,768

1.3%

32,433

3.9%

21,491

2.6%

MC TOTAL

#

%

471,850

16.2%

420,160

89.0%

35,760

7.6%

15,930

3.4%

10,300

2.2%

MC TOTAL

#

%

228,399

16.3%

194,269

85.1%

22,451

9.8%

6,270

2.7%

5,409

2.4%

11,679

5.1%

7,321

3.2%

MC TOTAL

#

%

1,376

12.9%

998

72.5%

289

21.0%

89

6.5%

13101: CS REG AD 23101: CS CAS MGR1 23102: CS CAS MGR2 23103: CS CAS MGR3 23104: CS CAS MGR4 23105: TEAM CRD 23106: CS PROG POS 13102: Officials/Adminstrators 23107: Professional 33101: Technicians 43101: Protective Services/Sworn 53101: Protective Services/Unsworn 63101: Administrative 73101: Skilled Craft 83101: Services/Maintenance Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: MID-CUMBERLAND

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

137 44.5%

57 18.5%

0

0.0%

15

4.9%

5

1.6%

0

0.0%

24

7.8%

11

3.6%

0

0.0%

7

2.3%

2

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

0.6%

0

0.0%

0

0.0%

4

1.3%

3

1.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

26

8.4%

6

1.9%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

216 70.1%

84 27.3%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

7

2.3%

22

1

0.3%

0

0

0.0%

4

0

0.0%

2

0

0.0%

1

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

8

2.6%

30

TOTAL* # 1 0 201 21 35 9 0 2 7 0 0 0 32 0 0 308

NORTHEAST REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

N EAST # 475,412 457,118 10,173
4,656 3,465 8,121 4,651

% 8.4%
96.2% 2.1% 1.0% 0.7% 1.7% 1.0%

N EAST # 236,530 228,360
4,400 3,770 2,040

% 8.1%
96.5% 1.9% 1.6% 0.9%

N EAST # 103,481 98,156
2,609 1,349 1,367 2,716 1,514

% 7.4%
94.9% 2.5% 1.3% 1.3% 2.6% 1.5%

N EAST

#

%

958

9.0%

855

89.2%

66

6.9%

37

3.9%

11101: CS REG AD 21101: CS CAS MGR1 21102: CS CAS MGR2 21103: CS CAS MGR3 21104: CS CAS MGR4 21105: CS TEAM CRD 21105: CS PROG POS 11102: Officials/Adminstrators 21107: Professional 31101: Technicians 41101: Protective Services/Sworn 51101: Protective Services/Unsworn 61101: Administrative 71101: Skilled Craft 81101: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: N EAST

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.5%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

121 56.3%

12

5.6%

0

0.0%

15

7.0%

0

0.0%

0

0.0%

25 11.6%

0

0.0%

0

0.0%

6

2.8%

0

0.0%

0

0.0%

1

0.5%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

8

3.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.5%

1

0.5%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

23 10.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

201 93.5%

13

6.0%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.5%

11

0

0.0%

1

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

1

0.5%

14

TOTAL*
1 0 134 15 25 6 1 0 8 0 2 0 23 0 0 215

NORTHWEST REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

N WEST # 252,389 216,579 30,666
3,094 2,050 5,144 3,748

% 4.4%
85.8% 12.2%
1.2% 0.8% 2.0% 1.5%

N WEST # 118,080 103,790 12,220
2,070 1,420

% 4.1%
87.9% 10.3%
1.8% 1.2%

N WEST # 58,751 48,178
8,798 871 904
1,775 1,290

% 4.2%
82.0% 15.0%
1.5% 1.5% 3.0% 2.2%

N WEST

#

%

409

3.8%

291

71.1%

106

25.9%

12

2.9%

14101: CS REG AD 24101: CS CAS MGR1 24102: CS CAS MGR2 24103: CS CAS MGR3 24104: CS CAS MGR4 24105: TEAM CRD 24106: CS PROG POS 14102: Officials/Adminstrators 24107: Professional 34101: Technicians 44101: Protective Services/Sworn 54101: Protective Services/Unsworn 64101: Administrative 74101: Skilled Craft 84101: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: N WEST

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.8%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

63 52.5%

8

6.7%

0

0.0%

6

5.0%

1

0.8%

0

0.0%

14 11.7%

0

0.0%

0

0.0%

3

2.5%

0

0.0%

0

0.0%

1

0.8%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

5

4.2%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.8%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

17 14.2%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

111 92.5%

9

7.5%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

TOTAL* # 1 0 71 7 14 3 1 0 5 0 1 0 17 0 0
120

SHELBY REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

SHELBY

#

%

897,472

15.8%

424,834

47.3%

435,824

48.6%

27,619

3.1%

9,195

1.0%

36,814

4.1%

23,364

2.6%

SHELBY

#

%

434,530

14.9%

229,240

52.8%

186,520

42.9%

18,770

4.3%

11,250

2.6%

SHELBY

#

%

253,270

18.1%

94,396

37.3%

147,260

58.1%

17,707

7.0%

3,907

1.5%

11,614

8.5%

7,072

2.8%

SHELBY

#

%

1,268

11.9%

150

11.8%

1,080

85.2%

38

3.0%

14701: CS REG AD 24701: CS CAS MGR1 24702: CS CAS MGR2 24703: CS CAS MGR3 24704: CS CAS MGR4 24705: TEAM CRD 24706: CS PROG POS 14702: Officials/Adminstrators 24707: Professional 34701: Technicians 44701: Protective Services/Sworn 54701: Protective Services/Unsworn 64701: Administrative 74701: Skilled Craft 84701: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: SHELBY

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

0

0.0%

1

0.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

19

5.7%

189 56.3%

0

0.0%

3

0.9%

14

4.2%

0

0.0%

8

2.4%

35 10.4%

0

0.0%

2

0.6%

10

3.0%

0

0.0%

0

0.0%

1

0.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.3%

10

3.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

0.6%

39 11.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

35 10.4%

301 89.6%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

0

0.0%

13

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

16

TOTAL* # 1 0 208 17 43 12 1 0 11 0 2 0 41 0 0
336

SOUTH CENTRAL REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

S CENTRAL

#

%

346,453

6.1%

311,376

89.9%

25,870

7.5%

5,794

1.7%

3,413

1.0%

9,207

2.7%

8,485

2.4%

S CENTRAL

#

%

172,170

5.9%

156,450

90.9%

11,040

6.4%

4,680

2.7%

3,990

2.3%

S CENTRAL

#

%

87,204

6.2%

76,741

88.0%

7,112

8.2%

1,822

2.1%

1,529

1.8%

3,351

3.8%

2,775

3.2%

S CENTRAL

#

%

731

6.9%

561

76.7%

118

16.1%

52

7.1%

13401: CS REG AD 23401: CS CAS MGR1 23402: CS CAS MGR2 23403: CS CAS MGR3 23404: CS CAS MGR4 23405: TEAM CRD 23406: CS PROG POS 13402: Officials/Adminstrators 23407: Professional 33401: Technicians 43401: Protective Services/Sworn 53401: Protective Services/Unsworn 63401: Administrative 73401: Skilled Craft 83401: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: S CENTRAL

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

93 52.8%

20 11.4%

0

0.0%

9

5.1%

1

0.6%

0

0.0%

15

8.5%

4

2.3%

0

0.0%

6

3.4%

0

0.0%

0

0.0%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

4

2.3%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

1.1%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

18 10.2%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

149 84.7%

26 14.8%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.6%

9

0

0.0%

0

0

0.0%

3

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

1

0.6%

13

TOTAL # 1 0 114 10 19 6 1 0 4 0 2 0 19 0 0
176

SOUTHEAST REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

DCS POPULATION

#

TOTAL POPULATION

10,654

WHITE

6,688

BLACK

3,449

OTHER

517

HISPANIC/LATINO

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%
% 0.8%
62.8% 32.4%
4.9%

S EAST # 297,631 280,343 10,252
3,936 3,100 7,036 4,554

% 5.2%
94.2% 3.4% 1.3% 1.0% 2.4% 1.5%

S EAST # 145,380 137,870
4,220 3,290 1,940

% 5.0%
94.8% 2.9% 2.3% 1.3%

S EAST # 70,596 65,391
2,898 1,078 1,229 2,307 1,548

% 5.0%
92.6% 4.1% 1.5% 1.7% 3.3% 2.2%

S EAST

#

%

589

5.5%

523

88.8%

45

7.6%

21

3.6%

12101: CS REG AD 22101: CS CAS MGR1 22102: CS CAS MGR2 22103: CS CAS MGR3 22104: CS CAS MGR4 22105: TEAM CRD 22106: CS PROG POS 12102: Officials/Adminstrators 22107: Professional 32101: Technicians 42101: Protective Services/Sworn 52101: Protective Services/Unsworn 62101: Administrative 72101: Skilled Craft 82101: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: S EAST

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

78 53.1%

10

6.8%

0

0.0%

13

8.8%

1

0.7%

0

0.0%

14

9.5%

1

0.7%

0

0.0%

4

2.7%

0

0.0%

0

0.0%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.7%

2

1.4%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.7%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

16 10.9%

3

2.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

129 87.8%

17 11.6%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.7%

3

0

0.0%

1

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

1

0.7%

6

TOTAL # 1 0 89 14 15 4 1 0 3 0 1 0 19 0 0
147

SOUTHWEST REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

ALL OTHER

130,055

MIXED

63,109

OTHER

193,164

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

% 100.0%
80.2% 16.4%
2.3% 1.1% 3.4% 2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%

S WEST # 349,941 255,290 87,713
3,924 3,014 6,938 4,718

% 6.2%
73.0% 25.1%
1.1% 0.9% 2.0% 1.3%

S WEST # 167,610 128,480 36,040
3,090 1,690

% 5.8%
76.7% 21.5%
1.8% 1.0%

S WEST # 89,217 59,296 27,503
1,142 1,276 2,418 1,500

% 6.4%
66.5% 30.8%
1.3% 1.4% 2.7% 1.7%

14401: CS REG AD 24401: CS CAS MGR1 24402: CS CAS MGR2 24403: CS CAS MGR3 24404: CS CAS MGR4 24405: TEAM CRD 24406: CS PROG POS 14402: Officials/Adminstrators 24407: Professional 34401: Technicians 44401: Protective Services/Sworn 54401: Protective Services/Unsworn 64401: Administrative 74401: Skilled Craft 84401: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: S WEST

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

0

0.0%

1

0.5%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

47 24.6%

71 37.2%

0

0.0%

7

3.7%

7

3.7%

0

0.0%

14

7.3%

11

5.8%

0

0.0%

5

2.6%

1

0.5%

0

0.0%

1

0.5%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.5%

2

1.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

2

1.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

15

7.9%

5

2.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

90 47.1%

100 52.4%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.5%

10

0

0.0%

1

0

0.0%

1

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

1

0

0.0%

0

0

0.0%

0

1

0.5%

15

TOTAL* # 1 0 119 14 25 6 1 0 3 0 2 0 20 0 0
191

UPPER CUMBERLAND REGION

TN TOTAL POPULATION

#

TOTAL POPULATION

5,689,283

WHITE

4,563,310

BLACK

932,809

OTHER

193,164

ALL OTHER

130,055

MIXED

63,109

% 100.0%
80.2% 16.4%
3.4% 2.3% 1.1%

UC # 304,998 293,393
3,858 7,747 5,360 2,387

% 5.4%
96.2% 1.3% 2.5% 1.8% 0.8%

HISPANIC/LATINO

123,838

TN CIVILIAN WORKFORCE

#

TOTAL POPULATION

2,907,800

WHITE

2,389,700

BLACK

422,380

OTHER

95,720

HISPANIC/LATINO

62,060

TN YOUTH POPULATION

#

TOTAL POPULATION

1,398,521

WHITE

1,038,813

BLACK

296,509

ALL OTHER

36,375

MIXED

26,824

OTHER

63,199

HISPANIC/LATINO

38,899

2.2%
% 51.1% 82.2% 14.5% 3.3% 2.1%
% 24.6% 74.3% 21.2% 2.6% 1.9% 4.5% 2.8%

6,416
UC # 151,730 145,990
1,650 4,090 2,950
UC # 70,890 67,568
964 1,500
858 2,358 2,051

2.1%
% 5.2%
96.2% 1.1% 2.7% 1.9%
% 5.1%
95.3% 1.4% 2.1% 1.2% 3.3% 2.9%

12401: CS REG AD 22401: CS CAS MGR1 22402: CS CAS MGR2 22403: CS CAS MGR3 22404: CS CAS MGR4 22405: TEAM CRD 22406: CS PROG POS 12402: Officials/Adminstrators 22407: Professional 32401: Technicians 42401: Protective Services/Sworn 52401: Protective Services/Unsworn 62401: Administrative 72401: Skilled Craft 82401: Services/Maintenance
Regional Total * TOTAL EXCLUDING VACANT POSITIONS

DCS EMPLOYEE POPULATION: UPPER-CUMBERLAND

WHITE

BLACK

HISPANIC

#

%

#

%

#

%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

102 60.0%

0

0.0%

0

0.0%

12

7.1%

0

0.0%

0

0.0%

21 12.4%

0

0.0%

0

0.0%

5

2.9%

0

0.0%

0

0.0%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

5

2.9%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

20 11.8%

1

0.6%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

0

0.0%

168 98.8%

1

0.6%

0

0.0%

OTHER

VACANT

#

%

#

0

0.0%

0

0

0.0%

0

1

0.6%

5

0

0.0%

3

0

0.0%

2

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

0

0.0%

0

1

0.6%

10

TOTAL* # 1 0 103 12 21 5 1 0 5 0 1 0 21 0 0
170

APPENDIX C CASE FILE REVIEW METHODOLGY

The Review Sample
The 2006 Case File Review focused on children recently entering custody: children who had entered custody between October 1, 2005 and December 31, 2005 and who were in custody between three and six months by the end of the review period. By focusing on these children, the Case File Review findings more closely reflect the impact of current practice and improvement efforts.
In order to pull a sample of children within the parameters of the focus for this review, it was necessary to first create the population of children who fit those parameters. Using the Brian A. Class Lists, the TAC monitoring staff pulled each child who entered custody between October 1 and December 31, 2005 and who had been in custody at least three months.163 The total population falling within these parameters was 860 children.
The TAC decided on a sample size for the review that was statistically significant statewide and stratified by region. The sample was drawn to provide statistical validity at 95% confidence with a margin of error of + 5% for a total sample size of 268 children.164 TAC monitoring staff pulled the random sample for each region from the population of children created from the Brian A. Class Lists.
For each region, monitoring staff compared the demographics of the sample (age, race/ethnicity, and gender) with the demographics of the total population to ensure that the regional samples were representative. Figures C-1 through C-3 below show how the sample represents the population for this demographic information.
163 In order to get as close as possible to the true number of children entering custody between October 1and December 31, 2005 from the point-in-time Class Lists, the population was pulled from four different Class Lists. Any child entering custody between October 1 and October 31, 2005 was pulled from the January 31, 2006 Class List because that child would have been in custody at least three months by the time the Class List was produced. Likewise, any child entering custody between November 1 and November 20, 2005 was pulled from the February 28, 2006 Class List, and any child entering custody between December 1 and December 31, 2005 was pulled from the March 31, 2006 Class List. 164 Statistical validity at 95% confidence with a margin of error of + 5% for 860 children requires a sample size of 266 children; due to a calculation error, two extra cases were pulled for review, resulting in a total review sample of 268.

Figure C-1
CFR 2006: Age as of March 31, 2006

13-18

45% 45%

6-12

23% 23%

32% 0-5
32%

Children in population (n=860) Children in review sample (n=268)
Source: Brian A. Class Lists January 15, 2005—April 15, 2005.

Figure C-2
CFR 2006: Child's Race

Caucasian/White

African American/Black

Asian 00%%

American Indian and Alaska Native

0% 0%

Native Haw aiian and Other Pacific Islander 00%%

Tw o or More Races 2%4%

Unable to Determine 23%%

2224%%

67%71%

Children in population (n=860) Children in review sample (n=268)
Source: Brian A. Class Lists January 15, 2005—April 15, 2005.

Fem ale

Figure C-3
CFR 2006: Child's Gender
50% 48%

Male

50% 52%

Children in population (n=860) Children in review sample (n=268)
Source: Brian A. Class Lists January 15, 2005—April 15, 2005.
Nine percent of the children in the sample had been in custody at some point within the 12 months immediately preceding this new custody episode. Forty-one percent of children and their families received interventions to prevent custody. Seven percent of the children were on runaway at some point during the review period, and nine percent of the children were on a trial home visit at the end of the review period.
Of the original 268 cases in the sample, six could not be reviewed for one of the following reasons: the child was on runaway for more than half of the review period (two cases), the child was in a placement through ICPC (Interstate Compact on the Placement of Children) for the majority of the review period (one case), the child was in the physical custody of her father who was stationed in Korea for most of the review period (one case), the child’s adoption was finalized and the case file was unavailable for review (one case), or the child entered custody prior to October 1, 2005 (one case).
The Case Review Protocol
A revised version of the standardized protocol from the Case File Review conducted in 2005 was utilized for the review. The protocol was revised to clarify some questions and to expand other questions in order to gather more detailed information. The protocol assesses case management activities required by the Brian A. Settlement Agreement and related DCS policy. The information presented in this report reflects documentation found in the case files; thus, only activities documented in the case files or TNKids case recordings could be considered as indicators of case practice and compliance.
Protocol for Requesting Additional Documentation
There were a number of areas in which the reviewers sought and received additional documentation from the DCS and/or private provider staff regarding specific individual

children. The follow-up conducted by the reviewers in these cases had two primary purposes:
• to distinguish cases in which relevant work was actually being done, but case file documentation of that work was missing or incomplete, from cases in which the lack of documentation accurately reflected the lack of work;
• in those cases in which important work was absent or incomplete or in which a significant concern was raised by the information present in or absent from the file, to ensure that the Department had addressed or was addressing the aspect of concern regarding the case.
A list of all cases requiring supplemental information was sent to the following Departmental staff according to subject area:
• Executive Directors of Regional Services for the East and West Regions were sent inquiries regarding placement, child visits with family members, DCS case manager visits, planning, case transfer, legal advocacy, and maltreatment.
• Director of Medical and Behavioral Services was sent inquiries regarding medical, mental health, psychotropic medications, and maltreatment.
• Director of Educational Services was sent inquiries regarding education. • Director of Special Investigations Unit and Director of Child Protective Services were
sent inquiries regarding maltreatment.
Monitoring staff reviewed each response received in conjunction with the information provided by the reviewers in the protocol as well as information available in TNKids to verify that the Department’s response fully addressed the concerns and contained no inconsistencies. Monitoring staff also checked the Psychotropic Medication Application Database (PMAD) for additional information about psychotropic medication administration and consent.
For each child in the review sample in which the case file documented that the child was served by a private provider agency, a point person at that agency was contacted and asked to provide any additional information or documentation maintained by that agency which documented for the review period: private agency case manager contacts with the child, private agency case manager contacts with the family of origin of that child, private agency case manager contacts with the foster parent or facility staff of that child, and visits of the child with their family of origin and/or siblings. Monitoring staff then reviewed the documentation and recorded answers in the case review protocol.
Data Entry and Analysis
Data entry was completed at the same time as the review to allow reference to case files and decrease error (see Quality Control discussion below). Monitoring staff completed the cleaning and analysis of the data after the reviews in all regions were completed. When follow-up information was received from the Department, monitoring staff also coded this information and incorporated it into the data analysis.

Quality Control
Quality control procedures were designed to minimize error during the process of review and data entry. One member of the TAC monitoring staff read the completed protocols to check for inconsistencies within the reviewers’ responses. When inconsistencies were found, reviewers referred back to the file to make corrections as needed. In addition, discussions were held after each region’s review to make certain that reviewers were interpreting questions and scoring cases with unusual circumstances in the same way. These steps were taken to ensure the accuracy of the data collected by reviewers.

APPENDIX D
Comparison of Data between the 2005 and 2006 Case File Reviews

The following charts compare the data from the 2005 Case File Review with the data from the 2006 Case File Review. As noted in the Introduction to Section Two of the Monitoring Report, in this year’s Case File Review, reviewers conducted more extensive follow-up on cases in which documentation in the file was absent, incomplete, ambiguous, or unclear.

At least some of the improvements in some areas in this year’s Case File Review may be in part the result of the ability of the reviewers this year to request, receive and consider additional documentation. It may be that the 2005 Case File Review findings would have been more positive had similar follow-up procedures been followed in that review, and that the degree of improvement from last year to this year would therefore have been less.

In order to assist the reader in determining whether this might be the case with a particular comparison in the charts below, an asterisk has been placed next to any number or percentage that is based in part on supplemental information obtained as a result of the more extensive follow-up procedures used for this year’s review.

Child’s Initial Placement
Family setting Congregate Care Unable to determine

2005 performance n=276 90% 10% NA

2006 performance n=265 84% 16% NA

% point change, 2006
-6 +6

Child’s Initial Placement 2005 performance

by Family or Congregate n=276

Care Type

In-home

2%

DCS Licensed Foster 53%

Home

Kinship Foster Home 21%

Private Provider Foster 14%

Home

Group Home

1%

Primary Treatment

2%

Center

Residential Treatment 2%

Center

Medical Facility/Hospital 1%

Emergency or Temporary 3%

Facility/Shelter

Supervised Transitional/ NA

IL (Union Mission)

UTD

NA

2006 performance n=265
1% 51%
16% 16%
3% 4%
2%
3% 4%
0% (1 case)
NA

% point change, 2006 minus 2005
-1 -5 +2 -2 +2
+2 +1

Child Placed in Kinship Home at Time of Entry

2005 performance n=276
21%

2006 performance n=265
16%

% point change, 2006 minus 2005
-5

Child Experienced at Least One Placement Change During the Review Period

2005 performance n=276
45%

2006 performance n=265
52%

% point change, 2006 minus 2005
+7

Number of Placements during the Review Period One Two Three Four Five Six or More UTD

2005 performance n=276
55% 26% 10% 3% 3% 1% 2%

2006 performance n=265
48% 34% 12% 4% 1% 1% NA

% point change, 2006 minus 2005
-7 +8 +2 +1 -2

Placement in Emergency or Temporary Facility during the Review Period
UTD

2005 performance n=276
7% 1%

2006 performance n=265
13% NA

% point change, 2006 minus 2005
+6

Case File Documents 2005 performance Reason for Most n=124 Recent Placement Change
80%

2006 performance n=139
69%

% point change, 2006 minus 2005
-11

Reason for Most Recent Placement Change during the Review Period Maintain/Create Family Connections Not Related to Family Connections UTD

2005 performance n=124
28% 62% 10%

2006 performance n=139
22% 78% 0

% point change, 2006 minus 2005
-6 +16

Case File Documents 2005 performance Provision of Services n=56 to Stabilize Placement
14%

2006 performance n=56
7%

% point change, 2006 minus 2005
-7

Child has Sibling(s) 2005 finding in Custody of DCS n=276
59%

2006 finding n=268 47%

% point change, 2006 minus 2005 -12

Child Placed with 2005 performance

Siblings in Custody n=162

as of End of Review

Period

Placed with all

62%

Siblings

Placed with some but 18%

not all siblings

Not Placed with any 15%

Siblings

UTD

4%

2006 performance n=122
71% 14% 15% NA

% point change, 2006 minus 2005
+9 -4

Frequency of Child’s 2005 performance

Visits with Primary n=240

Caregiver

Generally Weekly 12%

Generally Bi-Weekly 15%

Generally Monthly 15%

Less than Monthly 43%

Not at all

15%

2006 performance n=246
18% 25% 19% 28% 10%

% point change, 2006 minus 2005
+6 +10 +4 -15 -5

Frequency of Child’s 2005 performance

Visits with Primary n=240

Caregiver

Generally Weekly 12%

Generally Bi-Weekly 15%

Generally Monthly 15%

Less than Monthly 43%

Not at all

15%

2006 performance (adjusted) n=222 20%* 27%* 21%* 26%* 6%*

% point change, 2006 minus 2005
+8* +12* +6* -17* -9*

Frequency of Child’s 2005 performance

Visits with Siblings n=47

Generally Weekly 6%

Generally Bi-Weekly 15%

Generally Monthly 21%

Less than Monthly 45%

Not at all

13%

Different Frequencies NA

for Different Siblings

2006 performance n=36 6% 22% 44% 17% 6% 6%

% point change, 2006 minus 2005
+7 +23 -28 -7

Case Manager Face-to-face Contacts during First Eight Weeks in New Placement during the Review Period 6 or more times 5 times 4 times 3 times 2 times 1 time Not at all UTD UTD for lack of private provider documentation

2005 performance n=242
37% 10% 9% 12% 9% 3% 0% NA 19%

2005 performance without UTDs for lack of private provider documentation n=196
45% 12% 11% 15% 11% 4% 1% NA NA

2006 performance n=239
53% 15% 16% 8% 5% 3% NA 0% (1 case) NA

% point change, 2006 minus 2005
+16 +5 +7 -4 -4

Location of Visits: 2005 performance

Number of

n=242

Documented at

Placement

Location during

First Eight Weeks

in New Placement

3 visits at

22%

placement

2 visits at

19%

placement

1 visit at

21%

placement

No visits at

17%

placement

UTD location of 1%

visits

UTD for lack of 19%

private provider

documentation

2005 performance without UTDs for lack of private provider documentation n=196
28%
23%
27%
21%
2%
NA

2006 performance n=238
39% 16% 18% 24% 4% NA

% point change, 2006 minus 2005
+17 -3 -3 +7 +3

Case Manager Face-to-face Contacts during Second Eight Weeks in Placement during Review Period 4 or more times 3 times 2 times 1 time Not at all UTD for lack of private provider documentation

2005 performance n=183
44% 16% 10% 3% 2% 25%

2005 performance without UTDs for lack of private provider documentation n=137
59% 21% 13% 4% 2% NA

2006 performance n=167
75% 14% 8% 1% 1% NA

% point change, 2006 minus 2005
+31 -2 -2 -2 -1

Case Manager Face 2005 performance

to Face Contacts n=208

Included Time with

Child Outside the

Presence of Caretaker

Yes, all the time

6%

Yes, some of the time 68%

No, none

18%

UTD

7%

2006 performance n=205
9% 78% 13% 0%

% point change, 2006 minus 2005
+3 +10 -5

Case Manager Had 2005 performance Face-to-face Contact n=79 with Child in Private Provider Placement at Least One Time Per Month
67%

2006 performance n=90
89%

% point change, 2006 minus 2005
+22

DCS and Private Provider Case Managers Visited Jointly with Child at Least Once Every Three Months
Frequency of DCS Case Manager Visits with Family of Origin At least one time per month Less than monthly Not at all

2005 performance n=68
29% 2005 performance n=242
53% 45% 2%

2006 performance n=81
54% 2006 performance n=253
59% 36% 5%

% point change, 2006 minus 2005
+25 % point change, 2006 minus 2005
+6 -9 +3

Frequency of DCS Case Manager Visits with Family of Origin At least one time per month Less than monthly Not at all

2005 performance n=242
53%
45% 2%

2006 performance (adjusted) n=227
66%*
31%* 3%*

% point change, 2006 minus 2005
+13*
-14* +1*

Frequency of DCS Case Manager Visits with Foster Parents or Facility Staff At least one time per month Less than monthly Not at all

2005 performance n=264
51%
42% 7%

2006 performance n=265
59%
36% 5%

% point change, 2006 minus 2005
+8
-6 -2

Occurrence of Initial Child and Family Team Meeting CFTM occurred within 7 days CFTM occurred, but not within 7 days CFTM occurred but UTD date No CFTM occurred

2005 performance n=276 75% 16% 0% 9%

2006 performance n=268 78%* 15%* NA 7%*

% point change, 2006 minus 2005 +3* -1*
-2*

Occurrence of

2005 performance

Permanency Planning n=273

Child and Family

Team Meeting

CFTM occurred

67%

within 15 working

days

CFTM occurred, but 32%

not within 15

working days

No CFTM occurred 1%

2006 performance n=268
75%*
25%*
NA

% point change, 2006 minus 2005
+8*
-7*

Presence of Child 2005 performance

(Age 12 or Older) at n=100

Initial Child and

Family Meeting

Child present at

65%

CFTM

Child not present, but 2%

absence documented

to be in child’s best

interest

Child not present at 33%

CFTM

2006 performance n=119
82%* NA
18%*

% point change, 2006 minus 2005 +17*
-15*

Presence of Child 2005 performance

(Age 12 or Older) at n=111

Permanency Planning

Child and Family

Meeting

Child present at

84%

CFTM

Child not present, but 2%

absence documented

to be in child’s best

interest

Child not present at 14%

CFTM

2006 performance n=130
85%* NA
15%*

% point change, 2006 minus 2005 +1*
+1*

Permanency Plan signed by Parent(s) within 30 days of Custody Date

2005 performance n=276
70%

2006 performance n=262
67%

% point change, 2006 minus 2005
-3

Medical

2005 performance

Assessment

n=273

Completed Upon

Entry into Custody

Within 30 days 81%

Not within 30 days 14%

Not medically

5%

assessed

2006 performance without follow-up information n=268 85% 12% 3%

2006 performance with follow-up information n=268 86%* 14%* 0%*

% point change, 2006 minus 2005
+5, +6* -2, no change* -2%, -5*

Child Received 2005 performance 2006 performance 2006 performance % point change,

Needed Medical n=200

without follow-up with follow-up 2006 minus 2005

Evaluation and/or

information

information

Treatment for

n=214

n=214

Identified

Problems

73%

64%

85%*

-9, +10*

Reviewers were likely more rigorous in the 2006 Review in deciding whether or not a

child’s health needs had been met because of the opportunity to conduct additional

follow-up on children with any unaddressed health need, even if that need did not appear

to be very significant.

Child Received 2005 performance 2006 performance 2006 performance % point change,

Needed Mental n=140

without follow-up with follow-up 2006 minus 2005

Health Care for

information

information

Identified

n=171

n=171

Problems

67%

61%

96%*

-6, +28*

Reviewers were likely more rigorous in the 2006 Review in deciding whether or not a

child’s mental health needs had been met because of the opportunity to conduct

additional follow-up on children with any unaddressed mental health need, even if that

need did not appear to be very significant.

Case File Documents that Child was Administered Psychotropic Medication during the Review Period

2005 finding n=276
17%

2006 finding n=268
21%

% point change, 2006 minus 2005
+4

Percent of Children in Each Age Range Administered Psychotropic Medication 0-3 years 4-6 years 7-9 years 10-12 years 13-17 years

2005 finding
0% (0 of 81) 9% (3 of 34) 3% (1 of 29) 24% (8 of 33) 34% (34 of 99)

2006 finding

% point change, 2006 minus 2005

0% (0 of 69) 3% (1 of 30) 32% (6 of 19) 37% (11 of 30) 33% (34 of 120)

no change -6 +29 +13 -1

Consent for Administration of Psychotropic Medication Received Child’s (16 and over) consent obtained Parental consent obtained Health Unit Nurse consent obtained No consent

2005 performance 2006 performance

n=46

without follow-up

information

n=57

17%

12%

30%

26%

13%

11%

40%

51%

2006 performance with follow-up information n=57
16%*
42%*
12%*
30%*

% point change, 2006 minus 2005
-5, -1*
-4, +12* -2, -1* +11, -10*

Child attended 2005 performance 2006 performance 2006 performance % point change,

school regularly n=177

without follow-up with follow-up 2006 minus 2005

information

information

n=188

n=188

80%

60%

62%*

-20, -18*

Reviewers were likely more rigorous in the 2006 Review in deciding whether or not a

child attended school regularly, using the standard of no more than 5 unexcused absences

during the review period as a guideline for determining regular attendance.

Recent copy of report 2005 performance

card in file

n=177

51%

2006 performance n=188 39%

% point change, 2006 minus 2005 -12

Child changing schools upon entering custody

2005 performance n=176
60%

2006 performance n=188
54%

% point change, 2006 minus 2005
-6

Child changing schools due to a placement change

2005 performance n=84
64%

2006 performance n=116
55%

% point change, 2006 minus 2005
-9

Child educated in In-house Schools

2005 performance n=22 64%

2006 performance n=26 54%

% point change, 2006 minus 2005 -10

Child receiving special education services

2005 performance n=63
57%

2006 performance without follow-up information n=85 49%

2006 performance with follow-up information n=72 69%*

% point change, 2006 minus 2005
-10, +12*

Case Transferred to 2005 performance 2006 performance

New Worker during n=276

without follow-up

Review Period

information

n=268

More than once 4%

3%

Once

18%

15%

Not transferred 76%

78%

Unable to determine 2%

4%

2006 performance with follow-up information n=268 3% 15% 82% 0%

% point change, 2006 minus 2005
-1, -1 -3, -3 +2, +6 +2, -2

Case Transfer Included a Face-toFace Meeting between Case Managers Yes for all Not for any Unable to determine

2005 performance n=60
33% 64% 3%

2006 performance n=49
18% 82% 0%

% point change, 2006 minus 2005
-15 +18 -3

Case File Documents 2005 performance

Efforts to Introduce n=59

New Case Manager

to Child and Child’s

Parents

Yes for all

31%

Yes for some

2%

Not for any

67%

2006 performance n=49
16% 2% 82%

% point change, 2006 minus 2005
-15 no change +15

Child was subject of CPS referral during review period

2005 performance n=276

2006 performance without follow-up information n=268

2006 performance with follow-up information n=268

% point change, 2006 minus 2005

3%

9%

5%

+6, +2*

Documentation that 2005 performance

Child has a Guardian n=271

ad litem

Yes for all

81%

2006 performance n=268
89%*

% point change, 2006 minus 2005
+8*

* represents data that reflects significant supplemental information